Petitioners Brief — United States v. Batchelder

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No. 78-776 |

In the Supreme Court of the United States

OCTOBER TERM, 1978

UNITED STATES OF AMERICA, PETITIONER

Vv.

MILTON DEAN BATCHELDER

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

WADE H. McCREE, JR.

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

ANDREW L. FREY

Deputy Solicitor General

ANDREW J. LEVANDER

Assistant to the Solicitor General

SIDNEY GLAZER

FRANK J. MARINE

Attorneys

Department of Justice

Washington, D.C. 205380

— —_———

I I bi ocr nsnrcisncinaumbicinpspbencimmtennesnnetas

ES ARE NC eet ee

RN IN ssisscssnssanninddnnincinevetingeinasiesousenees

Constitutional provision and statutes involved..

PI secrete iprsccacrishss dattecsbievordieiéunenesnecsonnce

UMMA OC BTW UMICIE. .....0cccenccsccepececcenorscssceseces

IE icotetis i centcadaaedinn daliceaiicimmanniibanisaeeaieadvande

II.

The federal gun control laws unambigu-

ously authorize the imposition of a sen-

tence of up to five years’ imprisonment

for a violtaion of Section 922(h) ..........

A. The language and structure of the

federal gun control laws make clear

that a violation of Section 922 (h)

is punishable in accordance with

Section 924(a) and not Section

jE SE PSNI RSE ced aso ee

B. The legislative history demonstrates

that Congress intended that Title

VII complement and not override

the express provisions of Title IV..

C. The doctrines of lenity, implied re-

peal, and avoidance of constitu-

tional questions do not justify the

court of appeals’ reconstruction of

the federal gun laws ......................

Overlapping criminal statutes with dif-

ferent penalty provisions do not deny

defendants due process of law ..............

oa no NS = FE

Argument—Continued Page

A. Title IV is not void for vagueness.. 31

B. The prosecutor’s discretion to

charge cases such as respondent’s

under either Section 922(h) or

Section 1202(a) does not violate

the CometititiOe ....ccscscessscutsinivsenissnse 35

C. Section 924(a) does not constitute

an unconstitutional delegation of

Congress’ duty to affix punish-

TIDOINE . «sacoscnocsoncsncuntannhanapessnaumnnieiualns 41

CO DRESS. ena br een Tie uke Fee 44

CITATIONS

Cases:

American Fur Co. v. United States, 27

U.S. (B Pot) Qi cccneccsicccienesrstetincun 28

Barrett v. United States, 423 U.S. 212....15, 17,

18, 21, 27

Bell v. United States, 349 U.S. 81.......... 26, 34, 43

Berra v. United States, 351 U.S. 181 ...... 34, 40

Bordenkircher v. Hayes, 484 U.S. 357..35, 39, 40

Colautti v. Franklin, No. 77-891 (Jan. 9,

BOT) casicecnacesecessesonsesssacnscnsensomasnenbiuienmesns 32

Confiscation Cases, 74 U.S. (7 Wall.)

BEE onecccnsiascnsesccoveritanccestistoniaiacneuiesnadeieties 35°

Crowell v. Benson, 285 U.S. 22 .................. 28

Director, Office of Workers’ Compensa-

tion Programs v. Rasmussen, No, 77-

1465. (Hab, 90, TOTBY ccsscccccccssctnsenscconses 14

Edwards v. United States, 312 U.S. 473.. 30

Gulf Oil Corp. v. Copp Paving Co., 419

UB, * BOB scstie.-ctiscccctsiieneaencennunaninasneeten 17

Hospital Building Co. v. Trustees of Rex

Hospital, 425 U.S. 788 .............:c-c0-es0-00 22

Cases—Continued Page

Huddleston v. United States, 415 U.S.

a 15, 16, 26, 27, 28

Hutcherson v. United States, 345 F.2d

964, cert. denied, 382 U.S. 894 000000... 40

Inmates of Attica Correctional Facility v.

Rockefeller, 477 F.2d 876 ...................-.. 36, 38

Mauney v. United States, 454 F.2d 273.... 18

Morton v. Mancari, 417 U.S. 585 20000....... 29, 30

Newman v. United States, 382 F.2d 479.. 38, 39

Oyler v. Boles, 868 U.S. 448 2.000.000.0000... 35

People v. Eboli, 34 N.Y. 2d 281, 313 N.E.

EE SERRE SCC ee ne 34, 40

People v. McCollough, 57 Ill. 2d 440, 318

i oshwade 34, 40

Perez v. United States, 402 U.S. 146 ...... 22

Posadas v. National City Bank, 296 U.S.

I ei Meath de ersiciae et asca ss oteesdeasldllivenesions 29, 30

Radzanower v. Touche Ross & Co., 426

REESE: cen eee eee 29, 30

Rewis v. United States, 401 U.S. 808 ...... 26

Rosenberg v. United States, 346 U.S.

NE cassie sesieacehden ah asicli ttenlibeeeoneconseoacaoe 29, 35, 40, 41

Sansone v. United States, 380 U.S. 348.... 34

Scarborough v. United States, 431 U.S.

SN ROA ea Ae et 15, 21, 22, 23, 24, 27, 30

Shapiro v. United States, 335 U.S. 1 ...... 28

Simpson v. United States, 435 U.S. 6 ...... 26

Smith v. United States, 375 F.2d 248 ...... 37

Spies v. United States, 317 U.S. 492 ........ 40

Swain v. Pressley, 480 U.S. 372 ............ 11, 28, 29

United States v. Bass, 404 U.S, 336............ 20, 22,

23-24, 26

United States v. Beacon Brass Co., 344

Ie an ee a eee 34, 35, 40

United States v. Bell, 506 F.2d 207 .......... 35, 39

Cases—Continued Page

United States v. Bishop, 412 U.S. 346...... 34

United States v. Bland, 472 F.2d 1329...... 36

United States v. Borden Co., 308 U.S.

| PREETI es ee ee ees NS 29, 30

United States v. Bramblett, 348 U.S. 503.. 28

United States v. Carr, 584 F.2d 612, cert.

denied, No. 78-984 (Feb. 26, 1979)...... 18

United States v. Cox, 342 F.2d 167, cert.

CUI GE Ei lee HW . Grceecertdinteseccesnestvccnncs 36, 38

United States vy. Eisenmann, 396 F.2d

MERA ee ran araene an bon EU Reiser a Pao Pm 33

United States v. Evans, 333 U.S. 483...... 42

United States v. Five Gambling Devices,

Be i < WH saateidsoneiccncscstinnsasielensissailclpindaecin 29

United States v. Fournier, 483 F.2d 68.... 18

United States v. Gilliland, 312 U.S. 86..29, 30, 33

United States v. Goodroe, No. 76-2252 (3d

Cir. Feb. 28, 1977), disposition of case

reported at 549 F.2d 797, cert. denied,

RE Se NE i sabi secacnctadeeiele enc 18

United States v. Gordon, 548 F.2d 743...... 33

United States v. Hall, 536 F.2d 0813, cert.

GR Gir Uris. HUE Mesincbertedbipecocteertecices 33-34

United States v. Harriss, 347 U.S. 612.... 32

United States v. Jones, 527 F.2d 817 ........ 34, 40

United States v. Jones, 583 F.2d 1387,

cert. denied, 481 U.S. 964 ................... 21

United States v. Librach, 520 F.2d 550,

cert. denied, 429 U.S. 9389 .................... 40

United States v. Matanky, 482 F.2d 1319,

cert. denied, 414 U.S. 1089 .................. 33

United States v. McDaniel, 550 F.2d 214.. 21

United States v. Moore, 423 1.S. 122 .... 30

United States v. Morris, 39 U.S. (14 Pet.)

SEU ctanccsncntetninessinniaies 28

Cases—Continued Page

United States v. Musgrove, 581 F.2d 406.. 18

United States v. Nixon, 418 U.S. 6838....35, 36, 40

United States v. Noveck, 278 U.S. 202...... 34

United States v. Panetta, 486 F. Supp.

BED siniicinncliiensipasalcemmameamededamaae 18

United States v. Phillips, 522 F.2d 388.... 18

United States v. Powell, 423 U.S. 87 ........ 32

United States v. Powers, 572 F.2d 146.... 21

United States v. Radetsky, 585 F.2d 556,

cert. denied, 429 U.S. 820 ..........0.02........ 33

United States v. Robbins, 579 F.2d 1151.. 21

United States v. Smith, 523 F.2d 771,

cert. denied, 429 U.S. 817 .....0000000000... 33, 34, 40

United States v. Sullivan, 332 U.S. 689... 28

United States v. Thrasher, 569 F.2d 894.. 18

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

| Pn ROR inn Hes Sa 7c DORI ADE 27, 28

United States v. Wright, 581 F.2d 704,

cert. denied, No. 78-5429 (Jan. 15,

RI, witicdsnl nie cnebaikciattaiec eat, 17-18

Universal Interpretive Shuttle Corp. v.

Washington Metropolitan Area Transit

Commission, 398 U.S. 186 20.00.00... 29

Constitution, statutes and regulation:

United States Constitution:

Artes Ti, BOCTOR D «...........cccccceccececes 36

| 2, 34

Eighth Amendment .......................000-. 42

Federal Firearms Act, ch. 850, 52 Stat.

) | __NADR ELION Go tere gee SY a EEE ER 30

Gun Control Act of 1968, Pub. L. No. 90-

618, Section 102, 82 Stat. 1224 ............ 25

VI VII

Constitution, statutes and Constitution, statutes and \

regulation—Continued Page regulations—Continued Page

National Firearms Act, 26 U.S.C. 5801 18 U.S.C, 922 (h) (4) .................. 16, 20

OF O06. \sccicetattnieiomeanein 24 BS UE. DEBI) | ccrcornprereicccecsece 16

Omnibus Crime Control and Safe Streets ee WIE) III cchhctincvibesndonabsoatusics 16

Act of 1968, Pub. L.“No. 90-351, Titles Be Ae REID. sccescsniscnccseesencess 16

IV and VII, 82 Stat. 225-235, 236-237, | SEES. YIN ats cettniclpanatenccnunenn 19, 28, 30

as modified by the Gun Control Act of BS Welois CRG CD) ncceccnsccenssqecsesceses passim

1968, Pub. L. No. 90-618, 82 Stat. 1213- , ,

1286, 18 U.S.C. 921 et 8€q. eseecccccnn.. 18 peor 1S UEC. App. 1201

Title IV, 18 U.S.C. 921 et seq.: 18 U.S.C. App. 1202 ccrecccccscscseve 18, 30

ee oS | ne 2 18 U.S.C. App. 1202 (a) .............. passim

18 U.S.C. 921(a) (20) ................ 16, 20 18 U.S.C. App. 1202(a) (1) ...... 19

ee Wa aiatiiteneteansrtaandiiicess 19, 28, 30 18 U.S.C. App. 1202(a) (2) ...... 19

18 U.S.C. 922(a)-922(c) .......... 16 18 U.S.C, App. 1202(a) (8) ...... 19, 20

18 U.S.C. 9220) (1) ..........0c00000. 16 18 U.S.C. App. 1202(a) (4) ...... 19

18 U.S.C. 922(b) (5) .................. 16 18 U.S.C. App. 1202(a) (5) ...... 19

1G UB OD sesvestisceceivessssnscs 16 18 U.S.C. App. 1202(c) ............ 5

18 U.S.C, 922(d) .......c..cccccscese 16, 17, 23

18 USC. 922(d) (1) enero 16 2 aR 33

18 U.S.C. 922(d) (2) -.....-eeececeeeee 16 SR

18 U.S.C, 922 (d) (3) -..---vseereneee 16 I icici. 2

18 U.S.C, 922(d) (4)... 16 ye as 93

~ 18 U.S.C. 922 (e) adeensonsonscesseeccasen 21 18 U.S.C. FOR ee 33

BG UN, DIES) wscicssceveosnsesosecsen 21 RR 99

18 U.S.C, 922 (g) ..........csceccoseceree 17, 20 18 U.S.C. 1841 SST a raat 33

18 U.S.C, 922 (g) (1) -....---..e--020++ 16 SS eran 33

18 U.S.C. 922(g) (2)... 16 LS ee 33

18 U.S.C. 922 (g) (3) eneeereenennenenas 16 18 USC. 16238 (a) PP ACC ee eB 33

18 U.S.C. 922 (g) (4) qnddéattabienseuss 16 18 USC. EADS OA ret 33

18 U.S.C. 922 (h) dbdatentecneseccessiasseed passim 26 USC. SR oa Sars ania! 83 84

18 U.S.C, 922(h) (1) .............. 16, 20, 32 aoe tn ee al ee oe chic ts a ‘

18 U.S.C. 922(h) (2) ................. . 16

18 U.S.C. 922(h) (8) .................. 16

Vit

Constitution, statutes and

regulations—Continued Page

BR NI HIE srececssnssnesnainncii<eonnceusceunechomnatip 338, 34

BS Te MEIIE ieticetidinccocwesestenehenendhenienednvsscante 36

re ethic sncnichcannsticecisionicenerbeensnotsinnntn 36

es Spsebthiicindartnneiaiigenanisiiaicocsnantaniene 33

Oe IUD ecicsecticscntvecineeeindieasabintionse 33

OF See? IER ect earnciiniechntessccnlbcintinmtiaiipionintiens 16

Miscellaneous:

ABA Project on Standards for Criminal

Justice, The Prosecution Function and

the Defense Function (Approved Draft

BIG D . ccacctupeasssesevennstiieclatenanbanetienndanetibaetens 37

Breitel, Controls in Criminal Law En-

forcement, 27 U. Chi. L. Rev. 427

CERI D csksssseisieintenteinitieneonsubicielanncenmstadaubeaiiees 37

Comment, The Right to Nondiscrimina-

tory Enforcement of State Penal Laws,

61 Colum. L. Rev. 1108 (1961) ............ 35, 37

114 Cong. Ree. 14774 (1968) ................ 10, 24, 27

114 Cong. Rec. 16286 (1968) ........0....... 24

H.R. Conf. Rep. No. 1956, 90th Cong., 2d

SIOGR, CEIIUED sinsdncsvocsnsensoncesbonsesncensinictuns 11, 20, 25

McGowan, Congress, Court and Control

of Delegated Power, 77 Colum. L. Rev.

SR CIEE O etictindncinicticenectulecnteeedcnnie 42

Note, Prior Convictions and the Gun Con-

trol Act of 1968, 76 Colum. L. Rev. 326

CRI TIED . snssrssscdsnceecsonhsnehecipescbianlaeaevdenndesanans 19

Note, The Rosenberg Case: Some Reflec-

tions on Federal Criminal Law, 54

Colum. L. Rev. 219 (1954) .......0000....... 30

Miscellaneous—Continued Page

Rosett, Discretion, Severity and Legality

in Criminal Justice, 46 S. Cal. L. Rev.

GE: RSET ie On See, PCN ae oe 33, 37

Schwartz, Federal Criminal Jurisdiction

and Prosecutors’ Discretion, 18 Law &

Contemp. Prob. 64 (1948) oo... 37

S. Rep. No. 1097, 90th Cong., 2d Sess.

CITED. sciledpanitucnsibloetsidelncectasageaalnic: 15-16, 17

S. Rep. No. 1501, 90th Cong., 2d Sess.

ITED ‘vintbcidaeiddisnitbesnedinutnadeasamannalaa 15, 24, 25

Iu the Supreme Court of the United States

OCTOBER TERM, 1978

No. 78-776

UNITED STATES OF AMERICA, PETITIONER

Vv.

MILTON DEAN BATCHELDER

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

OPINION BELOW

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

la-3la) is reported at 581 F.2d 626.

JURISDICTION

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

32a-33a) was entered on July 24, 1978. A petition

for rehearing was denied on September 12, 1978 (Pet.

App. 34a-35a). On Oetober 2, 1978, Mr. Justice

(1)

Stevens extended the time for filing a petition for a

writ of certiorari to and including November 11,

1978. The petition for a writ of certiorari was filed

on November 10, 1978, and was granted on January

8, 1979 (A. 17). The jurisdiction of this Court rests

on 28 U.S.C. 1254(1).

QUESTION PRESENTED

Whether the prison sentence imposed on a defend-

ant convicted under 18 U.S.C. 922(h), which carries

a maximum five-year term, must be limited to two

years if his conduct also violated 18 U.S.C. App.

1202(a), which carries only a two-year term.

CONSTITUTIONAL PROVISION AND

STATUTES INVOLVED

1. The Fifth Amendment to the Constitution pro-

vides in pertinent part:

No person shall * * * be deprived of life, liber-

ty, or property, without due process of law * * *.

2. 18 U.S.C. 921(a) provides in pertinent part:

As used in this chapter—

* * * * Be

(14) The term “indictment” includes an

indictment or information in any court un-

der which a crime punishable by imprison-

ment for a term exceeding one year may be

prosecuted.

(15) The term “fugitive from justice”

means any person who has fled from any

State to avoid prosecution for a crime or to

avoid giving testimony in any criminal pro-

ceeding.

* * * * *

(20) The term “crime punishable by im-

prisonment for a term exceeding one year”

shall not include (A) any Federal or State

offenses pertaining to antitrust violations,

unfair trade practices, restraints of trade,

or other similar offenses relating to the

regulation of business practices as the Secre-

tary may by regulation designate, or (B)

any State offense (other than one involving

a firearm or explosive) classified by the laws

of the State as a misdemeanor and punish-

able by a term of imprisonment of two years

or less.

3. 18 U.S.C. 922(h) provides:

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 ex-

ceeding one year;

(2) who is a fugitive from justice;

(3) who is an unlawful user of or ad-

dicted to marihuana or any depressant or

stimulant drug (as defined in section 201(v)

of the Federal Food, Drug, and Cosmetic

Act) or narcotic drug (as defined in section

4731(a) of the Internal Revenue Code of

1954) ; or

(4) who has been adjudicaied as a mental

defective or who has been committed to any

mental institution;

to receive any firearm or ammunition which has

been shipped or transported in interstate or for-

eign commerce,

18 U.S.C. 924(a) provides:

Whoever violates any provision of this chapter

or knowingly makes any false statement or rep-

resentation with respect to the information re-

quired by the provisions of this chapter to be

kept in the records of a person licensed under

this chapter, or in applying for any license or

exemption or relief from disability under the

provisions of this chapter, shall be fined not more

than $5,000, or imprisoned not more than five

years, or both, and shall become eligible for

parole as the Board of Parole shall determine.

5. 18 U.S.C. App. 1202(a) provides:

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, or

(2) has been discharged from the Armed

Forces under dishonorable conditions, or

(3) has been adjudged by a court of the

United States or of a State or any political

subdivision thereof of being mentally incom-

petent, or

(4) having been a citizen of the United

States has renounced his citizenship, or

(5) being an alien is illegally or unlaw-

fully in the United States,

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

not more than $10,000 or imprisoned for not

more two years, or both,

6. 18 U.S.C. App. 1202(c) provides in pertinent

part:

(2) “felony” means any offense punishable by

imprisonment for a term exceeding one year, but

does not include any offense (other than one in-

volving a firearm or explosive) classified as .a

misdemeanor under the laws of a State and

punishable by a term of imprisonment of two

years or less;

STATEMENT

Following a jury trial in the United States District

Court for the Southern District of Illinois, respondent,

who had previously been convicted of a felony, was

convicted of unlawfully receiving a firearm that had

been transported in interstate commerce, in violation

of 18 U.S.C. 922(h). Pursuant to 18 U.S.C. 924(a),

he received a sentence of five years’ imprisonment.

The court of appeals affirmed respondent’s conviction,

but, by a divided vote, the panel vacated the district

court’s judgment and remanded the case for re-

sentencing, concluding that the maximum allowable

sentence in this case was two years’ imprisonment

(Pet. App. la-31la).’

1 By order of the Chief Justice, the mandate of the court of

appeals has been stayed pending resolution of this case by

the Court. United States v. Batchelder, No. A-561 (Dec. 29,

1978).

1. The evidence at trial showed that on July 22,

1975, Russell Koch, an undercover agent of the Bu-

reau of Alcohol, Tobacco and Firearms, accompanied

an informant to Carl’s Bar in Belleview, [llinois,

where respondent was employed (Tr. 58-59). Agent

Koch overheard respondent, who had been convicted

of a felony in 1960,° tell someone in the bar that he

had a firearm that the government didn’t know about

(Tr. 60). Two days later, Koch and the informant

returned to the bar, at which time respondent showed

them a .38 caliber revolver that he was wearing in a

waist holster. Respondent offered to loan the revolver

to them for a particular “job” and said they would

have to pay him $110 if they had to discard the gun

(Tr. 61-64). One week later Koch returned to the bar

and purchased the revolver from respondent for $70

(Tr. 64-65). During the course of this transaction

respondent told Koch “that the gun had come from a

burglary in St. Louis” (Tr. 65). Respondent stipu-

lated that the revolver had been shipped from Massa-

chusetts to Missouri in 1948 (Tr. 57).°

2. On appeal the court affirmed respondent’s con-

viction, but a divided panel reversed and remanded

for resentencing to a maximum term of two years’

2 Respondent had pleaded guilty to murder in 1960 and

thereafter had served approximately 13 years of a 25-year

sentence. At trial, respondent stipulated that he had previ-

ously been convicted of a crime punishable by imprisonment

for a term exceeding one year (Tr. 57).

’ Respondent admitted receiving the firearm; his defense at

trial was that he had been entrapped by the government’s

informant (Tr. 117-123).

imprisonment. The majority opinion acknowledged

that respondent had been indicted and convicted un-

der 18 U.S.C. 922(h) and that 18 U.S.C. 924(a)

clearly provides that such an offense is subject to a

maximum penalty of five years’ imprisonment, or a

fine of $5,000, or both. The majority observed, how-

ever, that the substantive elements of Section 922(h)

—at least as applied to a convicted felon who un-

lawfully receives a firearm—are identical to those

of 18 U.S.C. App. 1202(a), which provides for a

maximum sentence of only two years’ imprisonment

(Pet. App. 4a & n.2). The court concluded that, in

these circumstances, it was “impermissible to sen-

tence a defendant to five years under Section 922(h)

when he could receive only a two-year maximum sen-

tence under Section 1202(a)” (id. at 4a-5a).

In deciding that respondent could receive only the

two-year maximum sentence provided by Section

1202(a) rather than the five-year maximum found in

Section 924(a), the court relied upon three general

principles of statutory construction. First, because

in its view the different penalty provisions found in

Sections 924(a) and 1202(a) “arguably contradict

each other and therefore leave the intent of the legis-

lators ambiguous,” the court applied the doctrine of

lenity, resolving the ambiguity in favor of the crimi-

nal defendant (Pet. App. 7a). Second, the court indi-

cated that insofar as Section 1202(a) could be con-

sidered to represent “Congress’ last word on the issue

of penalty,” it constituted an implied repeal of

Section 924(a) (Pet. App. 7a-8a). Finally, recog-

nizing that “these first two principles cannot be ap-

plied to these facts without some difficulty,” the

majority relied on the maxim that if fairly possible

a court should interpret a statute to avoid substantial

constitutional issues (Pet. App. 8a-9a). Because the

court found that “two statutes that are identical ex-

cept for their penalty provisions” might violate no-

tions of due process and equal protection (Pet. App.

9a-16a), it construed Sections 922(h) and 1202(a)

“as limiting imprisonment to a maximum of two

years for the offense of receiving a firearm by a

convicted felon” (Pet. App. 8a-9a).

Judge McMillen dissented from the vacation of

respondent’s sentence, finding persuasive “the long

line of cases * * * which hold that where an act may

violate more than one criminal statute, the govern-

ment may elect to prosecute under either, even if the

defendant risks the harsher penalty, so long as the

prosecutor does not discriminate against any class of

defendants” (Pet. App. 24a). Judge McMillen con-

ceded that this rule “is most often stated in terms of

two statutes prohibiting the same act but requiring

different elements of proof,” but he could see no argu-

ment that “the prosecutor’s discretion is any less

when statutes also overlap on the question of punish-

ment, if the defendant’s behavior can render him

subject to indictment under either section” (id. at

24a-25a).

SUMMARY OF ARGUMENT

Respondent, who had previously been convicted of

a felony, was indicted and convicted on a charge of

unlawfully receiving a firearm in violation of 18

U.S.C. 922(h). He was sentenced to five years’ im-

prisonment, the maximum term provided by 18 U.S.C.

924(a). It is not here disputed either that respond-

ent’s conduct violated Section 922(h) or that Section

924(a) by its express terms constitutes the penalty

provision applicable to violations of Section 922(h).

Nonetheless, because respondent’s conduct also’ vio-

lated 18 U.S.C. App. 1202(a), which carries a maxi-

mum term of two years’ imprisonment, the court of

appeals concluded that, as a matter of statutory con-

struction, respondent could not be sentenced to more

than two years’ imprisonment. That conclusion is

erroneous.

Sections 922(h) and 924(a) were enacted together

in Title IV of the Omnibus Crime Control and Safe

Streets Act of 1968, as part of a comprehensive fed-

eral scheme of firearm control. In particular, Section

922(h) prohibits several categories of individuals,

including convicted felons, from receiving firearms.

And Section 924(a) provides without exception that

violations of Section 922(h) and the other provisions

of Title IV are punishable by up to five years’ im-

prisonment, or $5,000 in fines, or both.

Nothing in the language or structure of Section

1202(a) suggests that its two-year maximum penalty

overrides the express terms of Section 924(a).

Rather, Section 1202(a) is an independent and self-

contained federal gun control statute that both de-

lineates criminal conduct and provides for its punish-

ment without reference to Title IV. The conduct pro-

hibited by Section 1202(a) overlaps somewhat with

the activities barred by Section 922(h), but the two

statutes are far from coextensive. Section 922(h) and

Section 1202(a) each covers categories of persons and

reaches kinds of conduct not addressed by the other.

In addition, Section 1202(a) contains a less rigorous

inverstate commerce element than Section 922(h).

These differences in statutory scope emphasize the

independent operation of the two statutes.

The pertinent legislative history confirms that Con-

gress intended Section 924(a) and not Section

1202(a) to govern sentencing for violations charged

under Title IV. Section 1202(a), which was enacted

simultaneously with Title IV, is the core provision

of Title VII of the Omnibus Act. Because Title VII

was added as a last-minute amendment to the Omni-

bus Act, the original legislative reports make no

mention of its content. However, Senator Long, the

sponsor of Title VII, specificaily stated that Section

1202 was to “take nothing from” but rather “add to”

Title IV. 114 Cong. Rec. 14774 (1968). Moreover,

the same Congress that enacted the Omnibus Act also

thereafter amended Titles IV (including Section

924(2)) and VII in the Gun Control Act of 1968.

The legislative reports accompanying these amend-

ments clearly reflect Congress’ understanding that

the substantive and penalty provisions of the two

statutes were independent of one another. See, e.g.,

H.R. Conf. Rep. No. 1956, 90th Cong., 2d Sess. 31,

34 (1968). &

Since Section 924(a) unambiguously controls the

appropriate range of punishment applicable to the

offense of which respondent was convicted, there is no

occasion to apply the principle of lenity. Indeed, the

decision of the court below creates anomalous results

and defeats the obvious intention of the legislature.

Nor is the decision of the court of appeals justified as

a means of avoiding serious constitutional issues.

The overlapping coverage of Sections 922(h) and

1202(a) does not raise substantial constitutional

questions, and in any event the court’s rewriting of

the federal gun laws is not a “fairly possible” con-

struction of Sections 924(a) and 1202(a). See Swain

v. Pressley, 430 U.S. 372, 378 n.11 (1977). Further-

more, since Sections 1202(a) and 924(a) were simul-

taneously enacted and subsequently re-enacted, neither

could be held to have effected an implied repeal of the

other.

II.

The court of appeals suggested that overlapping

criminal provisions that carry different penalties may

be unconstitutional. However, it is by no means un-

common or even undesirable for criminal statutes to

overlap, and there is no basis in law for concluding

that an overlap such as that presented here consti-

tutes a denial of due process.

A. Title IV is not void for vagueness. On the con-

trary, Section 922(h) defines with clarity those per-

sons who are prohibited from receiving firearms.

Indeed, respondent essentially contends that the fed-

eral gun laws are too specific insofar as he clearly

violated two separate statutes. Concomitantly, Sec-

tion 924(a) unambiguously sets forth the applicable

punishment. Neither the court of appeals nor re-

spondent has identified what words or phrases in

Title IV are vague or ambiguous, and such a specific

criminal statute cannot be rendered void for vague-

ness merely because it overlaps with another unam-

biguous and independent criminal provision.

B. The prosecutorial discretion incident to the

existence of overlapping criminal provisions does not

in and of itself violate constitutional norms. Based

on the doctrine of separation of powers and the

practical difficulties inherent in judicial review of

prosecutorial decisions, this Court has repeatedly

stated that the prosecutor’s decision to file charges

and to proceed under one statute rather than another

is not generally subject to judicial review. Just as

the prosecutor has acknowledged discretion to decide

such matters as whether or not to charge at all,

whether to charge a greater or a lesser offense, or

whether to charge one or more of a group of related

offenses, so too the prosecutor may constitutionally

elect to charge either of two overlapping or even

identical criminal statutes. Indeed, the only consti-

tutional limitation on the exercise of the prosecutor’s

discretion with regard to charging matters is that

his decisions not be motivated by invidiously discrimi-

natory factors such as race or religion.

C. Finally, there is no merit to the related sug-

gestion that the overlap between Sections 922(h) and

1202(a) somehow amounts to an unconstitutional

delegation of Congress’ duty to affix punishment to

criminal statutes. Titles IV and VII contain precise

penalty provisions that do not leave the courts to

guess at the range of punishment deemed appropriate

by Congress. To the contrary, it is the decision below

that infringes both upon Congress’ power to affix

punishment to federal criminal laws and upon the

Executive’s broad discretion to enforce those statutes.

ARGUMENT

This case focuses on the interaction between Titles

IV and VII of the Omnibus Crime Control and Safe

Streets Act of 1968 (“Omnibus Act”), Pub. L. No.

90-351, 82 Stat. 225-235, 236-237, as modified by the

Gun Control Act of 1968, Pub. L. No. 90-618, 82

Stat. 1213-1236. Although the coverage of these

statutes overlaps to some extent, each Title prohibits

differing categories of potentially dangerous people

from obtaining firearms, and each Title contains a

specific penalty provision that by its unambiguous

terms controls sentencing questions arising under

that particular Title. Compare 18 U.S.C. 924(a)

with 18 U.S.C. App. 1202(a). Indeed, the language,

structure and legislative history of these statutes all

point unequivocally to the conclusion that Titles IV

and VII are self-contained statutory schemes that

Congress intended to be enforced independently of

each other. Nonetheless, the court below held, as a

matter of statutory construction, that where, as here,

a defendant’s conduct vielates both Titles, he may be

sentenced only in accordance with the lesser two-year

maximum penalty found in Title VII, regardless of

the statute under which he was prosecuted.

In point I of this brief, we show that this conclu-

sion constitutes an unwarranted rewriting of the

federal gun laws in direct conflict with Congress’

manifest intent. In point II, we address the constitu-

tional concerns, chimerical in our view, that appear

to have prompted the court of appeals’ strained con-

struction of the statutes.

I. THE FEDERAL GUN CONTROL LAWS UNAM-

BIGUOUSLY AUTHORIZE THE IMPOSITION OF

A SENTENCE OF UP TO FIVE YEARS’ IMPRIS-

ONMENT FOR A VIOLATION OF SECTION 922(h)

It is beyond cavil that the language of Section

924(a) explicitly and unambiguously permits the

sentence of five years’ imprisonment that was im-

posed upon petitioner for his receipt of a firearm

in violation of Section 922(h). Few indeed are the

circumstances in which a court may appropriately

refuse to uphold a statutory directive as plain and

concise as that construed out of existence by the

court of appeals in this case. See Director, Office

of Workers’ Compensation Programs v. Rasmussen,

No. 77-1465 (Feb. 20, 1979), slip op. 7, 17. Perhaps

such judicial reconstruction of an unambiguous stat-

ute would be warranted when application of the

statute as written would produce absurd results

or when the statutory directive is flatly contradictory

to some other portion of the same or of another stat-

ute. Such a result may also be justified if clear

evidence of legislative intent demonstrated that the

seemingly unambiguous statutory command was a

mistake. Here, however, the plain language of Sec-

tion 924(a) is in fact reinforced by an analysis

of the structure and history of the pertinent pro-

visions of the federal gun control laws. In such

circumstances, neither the principle of lenity nor

the distant specter of possible constitutional issues

entitles the courts to construe the statutes at issue

in a manner plainly at odds with their terms and

purposes.

A. The Language And Structure Of The Federal Gun

Control Laws Make Clear That A Violation Of

Section 922(h) Is Punishable In Accordance With

Section 924(a) And Not Section 1202(a)

1. Title IV represents a comprehensive scheme of

federal firearm regulation and registration that seeks

“broadly to keep firearms away from the persons

Congress classified as potentially irresponsible and

dangerous.” Barrett v. United States, 423 U.S. 212,

218 (1976); see Scarborough v. United States, 431

U.S. 563, 570 (1977); Huddleston v. United States,

415 U.S. 814, 824 (1974); S. Rep. No. 1501, 90th

Cong., 2d Sess. 22-23 (1968); S. Rep. No. 1097,

90th Cong., 2d Sess. 28 (1968).* In particular, Title

IV focuses upon four distinct categories of “poten-

tially irresponsible and dangerous” people: (1) per-

sons, such as respondent, who are under indictment

for, or who have been convicted of, ‘a crime punish-

able by imprisonment for a term exceeding one

year”’;° (2) fugitives from justice;* (3) addicts

and unlawful users of various controlled substances; *

and (4) the mentally incompetent.* Thus, Section

922(d) prohibits licensed gun dealers from know-

ingly selling, or otherwise disposing of firearms to

any person in the four enumerated categories. Simi-

* At the core of Title IV is a licensing scheme. Each person

engaged in the business of importing, manufacturing, trans-

porting, selling, or otherwise dealing with firearms must pro-

cure a federal license. 18 U.S.C. 923, 922(a)-922(c). Federal

licensees must keep detailed records of all their transactions,

including special forms that must be filled out by every per-

son buying or acquiring a firearm. See Huddleston v. United

States, supra, 415 U.S. at 816; see also 18 U.S.C. 922(b) (5),

922 (c), 922(m), and 923(g).

°18 U.S.C. 922(d) (1), 922(g) (1), and 922(h)(1). The

phrase “a crime punishable by imprisonment for a term ex-

ceeding one year” is further defined to exclude certain anti-

trust and business crimes, and crimes not involving firearms

if classified by a state as a misdemeanor and punishable by

no more than two years’ imprisonment. 18 U.S.C. 921

(a) (20). See 27 C.F.R. 178.11.

*18 U.S.C. 922 (d) (2), 922(g) (2), and 922 (h) (2).

718 U.S.C. 922 (d) (3), 922(g¢) (3), and 922 (h) (3).

®18 U.S.C. 922(d) (4), 922(g) (4), and 922(h) (4). In ad-

dition to the four groups of potentially dangerous persons

described above, Section 922(b) (1) precludes licensees from

selling handguns to persons under 21 years of age and any

firearm to persons under 18 years of age. (It is not unlawful,

however, for such underaged persons to receive firearms).

larly, Sections 922(g) and 922(h) bar persons fall-

ing within the four categories from transporting or

receiving any firearm, respectively.’

Besides detailing with clarity the types of persons

prohibited from receiving firearms, Title IV also

unambiguously and expressly sets forth the appro-

priate range of punishment applicable to those con-

victed of violating Section 922(h) (as well as 922(d)

and 922(g)). Section 924(a) provides that ‘“[w]ho-

ever violates any provision of this chapter * * * shall

be fined not more than $5,000, or imprisoned not

more than five years, or both * * *.” No exception

appears on the face of Section 924(a), and the

language and legislative history of Title IV make

clear beyond peradventure that Section 922(h) is

part of the “chapter” plainly subject to the penalty

provisions of Section 924(a). See 82 Stat. 226, 234;

S. Rep. No. 1097, 90th Cong., 2d Sess. 20-25

117 (1968). Accord, United States v. Wright, 581

F.2d 704 (8th Cir. 1978), cert. denied, No. 78-

® These provisions differ slightly with regard to their inter-

state commerce element. Section 922(g) prohibits transporta-

tion of firearms in commerce, whereas Section 922(h) pro-

scribes receipt of a firearm that has at some time traveled in

interstate commerce—a substantially less rigorous prerequi-

site to prosecution. See Barrett v. United States, supra; see

also Gulf Oil Corp. v. Copp Paving Co., 419 U.S. 186 (1974)

(construing “in commerce” language of the Clayton and

Robinson-Patman Acts). Here, for example, respondent stip-

ulated that the pistol in issue had been manufactured in

Massachusetts and shipped to Missouri in 1948 (Tr. 57).

(In addition, the evidence indicated that respondent had ac-

tually received the pistol following a burglary in St. Louis

(Tr. 65).)

5429 (Jan. 15, 1979); United States v. Musgrove,

581 F.2d 406 (4th Cir. 1978); United States v.

Thrasher, 569 F.2d 894 (5th Cir. 1978); United

States v. Phillips, 522 F.2d 388, 393 (8th Cir. 1975) ;

United States v. Fournier, 483 F.2d 68 (5th Cir.

1973); Mauney v. United States, 454 F.2d 273 (6th

Cir. 1972); United States v. Panetta, 4386 F. Supp.

114, 129 n.81 (E.D. Pa. 1977). See also Barrett

v. United States, supru, 423 U.S. at 215 (three-year

sentence for violation of 18 U.S.C. 922(h)); United

States v. Carr, 584 F.2d 612, 614 (2d Cir. 1978),

cert. denied, No. 78-984 (Feb. 26, 1979) (same).

2. Although the court of appeals recognized that

respondent had been prosecuted under Section 922 (h)

and that Section 924(a) “provides [the punishment]

for violations of Section 922” (Pet. App. 3a), it

nevertheless concluded that the maximum penalty

provided in Section 1202(a) overrides the plain

terms of Section 924(a). We submit that this rul-

ing is not supportable. Certainly there is nothing

in the language or structure of Section 1202(a)

that suggests that its two-year maximum penalty

provision is applicable to any criminal prosecution

other than one brought under Section 1202." Con-

” The Third Circuit has also apparently rejected the posi-

tion taken by the court below. See United States v. Goodroe,

No. 76-2252 (8d Cir. Feb. 28, 1977) (unpublished order; dis-

position of case reported at 549 F.2d 797), cert. denied, 434

U.S. 1062 (1978).

“The court of appeals declined to decide whether the

maximum $5,000 fine in Section 924(a) or the maximum

$10,000 fine in Section 1202(a) governed the sentences of de-

fendants whose conduct violates both provisions.

spicuously absent in that provision is an express

cross-reference to Sections 922 and 924. Indeed, in-

sofar as Section 1202(a) states both the conduct

prohibited and the potential punishment accorded

the crime, it appears to constitute a self-contained

gun control provision unconnected to, and independ-

ent from, Title IV. See Note, Prior Convictions and

the Gun Control Act of 1968, 76 Colum. L. Rev. 326,

327 (1976). The conclusion that Congress purpose-

fully enacted two separate gun control provisions,

each fully enforceable on its own terms, is further

buttressed by the substantial differences in coverage

between the two statutes.

a. Section 1202(a) proscribes the receipt, posses-

sion, or transportation of firearms by five categories

of presumptively dangerous people: convicted felons

(subsection (1)); persons dishonorably discharged

from the Armed Forces (subsection (2) ); mental in-

competents (subsection (3)); persons who have re-

nounced their American citizenship (subsection (4) ) ;

and illegal aliens (subsection (5)). Section 1202(a)

thus imposes a disability on three groups (dishonor-

able dischargees, ex-citizens, and illegal aliens) that

are not subject to Section 922(h); conversely Sec-

tion 922(h) alone prohibits the receipt of firearms

by fugitives from justice and by drug addicts and

users.

Moreover, even the subsections of the two statutes

that overlap are far from co-extensive. Section 922

(h) (1) includes those currently under indictment for

a felony as well as those who have been convicted,

but excludes from its coverage certain white collar

crimes. See 18 U.S.C. 922(h) (1), 921(a) (20). In

contrast, Section 1202(a) neither covers indictees

nor exempts antitrust violators and the like.” Simi-

larly distinguishable are the respective provisions con-

cerning the mentally defective.” In short, “although

subsections of the two Titles do address their prohibi-

tions to some of the same people, each statute also

reaches substantial groups of people not reached by

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

342 (1971) (footnote omitted).

b. Furthermore, the range of activities proscribed

by the two statutes is also not coterminous. Sec-

tion 922(h) forbids the receipt of firearms and am-

munition. Section 1202(a), on the other hand, deals

oniy with firearms and not ammunition, but it pro-

hibits possession and transportation as well as re-

ceipt.* The latter two elements differ substantially

2 Other differences may exist. For example, Section 922 (h)

refers to a felony indictment or conviction in any court (7.e.,

including those of foreign countries) whereas Section 1202 (a)

is limited to felony convictions obtained in federal or state

courts.

18 Section 922 (h) (4) places a disability on anyone “who has

been adjudicated as a mental defective or who has been com-

mitted to any mental institution.” Section 1202 (a) (3) merely

applies to anyone who “has been adjudged by a court * * * of

being mentally incompetent * * *.” Commitment does not

necessarily entail a court adjudication of mental incompe-

tence. See, e.g., H.R. Conf. Rep. No. 1956, 90th Cong., 2d

Sess. 830 (1968).

4 To some extent, this difference is offset by Section 922(g),

which prohibits transportation. However, that provision ap-

pears to require proof of transportation “in commerce.” See

from receipt. For example, suppose an individual

received a weapon in 1971, was convicted of a felony

in 1972, and continued to possess the weapon in

1973. He would not have violated Section 922(h),

because at the time of the receipt he was not suf-

fering from any disability. He would, however, have

violated Section 1202(a) by possessing a firearm

following a felony conviction. See also Scarborough

v. United States, supra, 481 U.S. at 564-566, 576

n.13; id. at 579 (Stewart, J., dissenting); United

States v. Robbins, 579 F.2d 1151, 1154 (9th Cir.

1978) ; United States v. Powers, 572 F.2d 146, 151

n.5 (8th Cir. 1978); United States v. McDaniel, 550

F.2d 214, 219 (5th Cir. 1977); United States v.

Jones, 5383 F.2d 1387, 1891 (6th Cir. 1976), cert.

denied, 431 U.S. 964 (1977).

Each provision also contains a slightly different

interstate commerce element. In order to prove a

violation of Section 922(h), the government must

establish that the firearm in question at some time

had moved in interstate commerce. Barrett v. United

States, swpra; see note 9, supra. Such proof will also

satisfy Section 1202(a). Scarborough v. United

States, supra. However, insofar as the latter statute

requires only that the illegal activity “affect[]

commerce,” the receipt, possession, or transporta-

tion of a firearm that has never crossed state lines

may still constitute a violation of Section 1202(a).

note 9, supra. See also 18 U.S.C. 922(e), 922(f) (prohibit-

ing common carriers from knowingly transporting weapons

in violation of Title IV).

See 431 U.S. at 571-572. Thus, a felon’s receipt and

subsequent use of an intrastate weapon to rob an

interstate shipment of geods would probably be pun-

ishable under Section 1202(a) but not Section 922

(h). Cf. Hospital Building Co. v. Trustees of Rex

Hospital, 425 U.S. 7388 (1976)."

c. While the court of appeals may have thought

it anomalous that Congress would enact two over-

lapping criminal statutes with different penalty

provisions, it is the result reached in this case

that creates serious anomalies. For example, if a

person received a firearm while under indictment for

murder, he would be subject to up to five years’ im-

prisonment. If he received the gun one day later,

when he had been convicted of the murder, the

maximum penalty would be reduced to two years.

Similarly a felon’s receipt of a single bullet could

lead to a five-year sentence while receipt of the fire-

arm itself would be punishable by a maximum of

two years’ imprisonment. And a person who had

'° As this Court recognized in United States v. Bass, supra,

404 U.S. at 845-346, Congress may well have intended that

Section 1202(a) reach all possessions, receipts, and trans-

portations of firearms by convicted felons and others without

regard to proof of an effect on interstate commerce in indi-

vidual cases. Because the language of Section 1202(a) was

considered ambiguous on this point, the Court required that

the government prove a minimal nexus with commerce in

every case. Compare Perez v. United States, 402 U.S, 146

(1971). In short, the Bass decision rendered the difference

between the commerce elements of Sections 922(h) and

1202(a) narrower than Congress perhaps intended, thereby

increasing the overlap between the two statutes to some

degree.

been adjudicated a mental incompetent would be sub-

ject only to the lesser sentence, whereas the person

who had merely been temporarily committed to a

mental institution sometime in the past could receive

the greater sentence. Finally, we note that this de-

cision would also undermine Congress’ intent (as

manifested in Section 924(a)) to punish equally per-

sons prohibited from receiving firearms and the gun

dealers that knowingly supply such persons, Com-

pare 18 U.S.C. 922(d) with Section 922(h).

B. The Legislative History Demonstrates That Con-

gress Intended That Tithe VII Complement And

Not Override The Express Provisions Of Title IV

In view of the language and structure of the

statutes under discussion, the decision of the court

of appeals can be upheld only by clear evidence

that the court’s construction carries out the un-

equivocally demonstrated aims of Congress in en-

acting the legislation. In fact, however, the per-

tinent legislative history strongly confirms that

Congress intended Section 924(a) and not Section

1202(a) to govern the range of punishment applic-

able to violations of Section 922(h).

As previously indicated, Sections 922 and 924 were

enacted together as part of Title IV of the Omnibus

Act. Section 1202(a) was simultaneously enacted as

a separate part of the Omnibus Act (Title VII).

Because Title VII was added as a last-minute floor

amendment to the Omnibus Act, it is not discussed in

the legislative reports. See Scarborough vy. United

States, supra, 431 U.S. at 569-570 & n.9; United

States v. Bass, supra, 404 U.S. at 344 & n.11.

Nonetheless, the legislative debates in both houses

clearly reflect Congress’ understanding of the inter-

relationship of the two Titles. Senator Long, the

sponsor of Title VII, stated that Section 1202(a)

would “take nothing from” but rather “add to” Title

IV. 114 Cong. Rec, 14774 (1968). See also id. at

16286 (remarks of Rep. Machen) (“Title VII * * *

[is] a good complement to the gun-control legislation

contained in title [IV of this bill’). In light of these

statements, this Court has previously recognized that

“(t]he purpose of [Title VII] was to complement

Title LV.” Scarborough v. United States, supra, 431

U.S. at 573.

Four months after enacting the Omnibus Act,

the same Congress considered and passed the Gun

Control Act of 1968. This statute amended and

reenacted both Title IV and Title VII, as well as the

National Firearms Act (26 U.S.C. 5801 et seq.).

The Gun Control Act and its accompanying reports

treat the provisions of Titles IV and VII as inde-

pendent and self-contained," with no indication of

congressional awareness that the penalty provisions

of Section 1202(a) preempted to any extent any

portion of Title IV. See Pub. L. No. 90-618, 82 Stat.

1213-1236; S. Rep. No. 1501, 90th Cong., 2d Sess.

(1968).

” Title I of the Gun Control Act amended Title IV of the

Omnibus Act, Title Il amended the National Firearms Act,

and Title III amended Title VII of the Omnibus Act,

In fact, Congress considered including a provision

in the Gun Control Act that would have doubled the

penalties provided by Section 924(a) to a maximum

of ten years’ imprisonment and a $10,000 fine (see

S. Rep. No. 1501, supra, at 21, 37), although this

provision was ultimately rejected in conference. H.R.

Conf. Rep. No. 1956, 90th Cong., 2d Sess. 31 (1968).""

Again the legislative history makes no reference to

any impact of Section 1202(a) on the penalties that

could be imposed under Section 924(a)—surely a most

extraordinary omission if the court of appeals’ ruling

in this case were a correct reflection of congressional

intent."

C. The Doctrines Of Lenity, Implied Repeal, And

Avoidance Of Constitutional Questions Do Not Jus-

tify The Court Of Appeals’ Reconstruction Of The

Federal Gun Laws

Notwithstanding the clarity of congressional de-

sign evidenced by the language, structure, and legis-

lative history of Titles IV and VII, the court of ap-

peals concluded that Section 1202(a) overrides Sec-

tion 924(a) with regard to the penalty that may be

imposed on defendants whose conduct violates both

Congress did, however, amend the parole eligibility re-

quirement found in Section 924(a). See Section 102 of the

Gun Control Act of 1968, Pub, L. No, 90-618, 82 Stat. 1224;

H.R. Conf. Rep. No. 1956, 90th Cong., 2d Sess. 31 (1968).

Subsequent legislative history is generally less persuasive

than contemporaneous reports and debates, But here, the

same Congress passed both the Gun Control Act and the

Omnibus Act, and the same House and Senate Committees

issued the relevant reports.

titles. The court justified this interpretation of the

federal gun laws by reference to three maxims of

statutory construction. First, the court invoked the

principle “that ambiguity concerning the interpre-

tation of criminal legislation should be resolved in

favor of lenity” (Pet. App. 7a). Second, the court

indicated that insofar as Title VII came after Title

IV, it effected an implied partial repeal of Section

924(a) (id. at Ta-8a). Finally, acknowledging that

“these first two principles cannot be applied to these

facts without some difficulty” (id. at 8a), the court

primarily relied on the doctrine that the courts will

adopt a reasonable construction of a statute if that

interpretation avoids a serious constitutional question.

However, none of these three canons of statutory

construction justifies the result in this case.

1. On a number of occasions this Court has stated

and applied the principle that “ambiguity concern-

ing the ambit of criminal statutes should be resolved

in favor of lenity.” Rewis v. United States, 401 U.S.

808, 812 (1971). See, e.g., Simpson v. United States,

435 U.S. 6, 14 (1978); United States v. Bass, supra,

404 U.S. at 347; Bell v. United States, 349 U.S.

81, 83 (1955). “This rule of narrow construction is

rooted in the concern of the law for individual rights,

and in the belief that fair warning should be accorded

as to what conduct is criminal and punishable by

deprivation of liberty or property.” Huddleston v.

United States, supra, 415 U.S. at 831. It is equally

well-established, however, that the touchstone of the

doctrine of lenity is the existence of a “grievous

ambiguity or uncertainty in the language and struc-

ture of the [criminal statute in question].” Jbid;

see, e.g., Scarborough v. United States, supra, 431

U.S. at 577; Barrett v. United States, supra, 423 U.S.

at 217-218; United States v. Wiltberger, 18 U.S. (5

Wheat.) 76, 95-96 (1820). No such ambiguity exists

here,

Respondent unquestionably violated Section 922

(h),"* and Section 924(a) unambiguously specifies

the punishment that may be imposed for that viola- .

tion: ‘Whoever violates any provision of this chapter

[i.e., Section 922] * * * shall be fined not more than

$5,000, or imprisoned not more than five years, or

both * * *.” Section 1202(a), on the other hand, is

the core provision of an independent, albeit comple-

mentary, federal gun control statute, that was de-

signed to “take nothing from” but rather “add to”

Title IV. 114 Cong. Rec. 14774 (1968) (remarks of

Sen. Long). See Scarborough v. United States, supra,

431 U.S. at 578. As we have shown above, the lan-

guage, structure, and legislative history of the Omni-

bus and Gun Control Acts unequivocally manifest

congressional intent to punish violators of Section

922(h) by up to five years’ imprisonment. And where

there is no ambiguity, “there is no justification for

indulging in uneasy statutory construction.” Barrett

v. United States, supra, 423 U.S. at 217. As this

Court has often stated, “[e]ven penal laws * * * ought

not to be construed so strictly as to defeat the obvious

' Respondent does not contend that Section 922(h) fails

to give adequate notice of the conduct prohibited.

intention of the legislature.” American Fur Co. v.

United States, 27 U.S. (2 Pet.) 358, 367 (1829);

see, e.g., Huddleston v. United States, supra, 415 U.S.

at 831; United States v. Bramblett, 348 U.S. 503,

509-510 (1955); United States v. Morris, 39 U.S.

(14 Pet.) 464, 475 (1840); United States v. Wilt-

berger, supra.

2. Similarly inappropriate is the court of appeals’

primary reliance on the principle that statutes should

be construed to avoid serious constitutional questions.

In point II, infra, we contend that respondent’s con-

stitutional claims concerning overlapping criminal

statutes with differing penalties are insubstantial, in

which case there would be no colorable basis for

applying the avoidance principle. See Huddleston

v. United States, supra, 415 U.S. at 833. Moreover,

even if the constitutional concerns were substantial,

the court of appeals could not properly avoid address-

ing them by rewriting the plain terms of the federal

gun laws. “[R]esort to an alternative construction

to avoid deciding a constitutional question is appro-

priate only when such a course is ‘fairly possible’

or when the statute provides a ‘fair alternative’

construction.” Swain v. Pressley, 480 U.S. 372, 378

n.1l (1977); see Shapiro v. United States, 335 U.S.

1, 31 (1948); United States v. “Sullivan, 332 U.S.

689, 693 (1948); Crowell v. Benson, 285 U.S. 22,

62 (1932). For obvious reasons, the court of appeals

failed to explain how the word “five” in Section

924(a) is ambiguous or how it could fairly be con-

strued to mean “two.” In fact, the language, struc-

ture and legislative history of Titles IV and VII,

described in detail above, “leave[] no reasonable

alternative.” United States v. Five Gambling De-

vices, 346 U.S. 441, 448 (1953). Accordingly, just

as in Swain v. Pressley, supra, the princivle that an

ambiguous statute should be construed to avoid con-

stitutional issues has no proper application here.

3. The court of appeals also suggested (Pet. App.

7a-8a) that Section 1202(a) had effected an implied

repeal of Section 924(a). That assertion does not

withstand close analysis. At the outset we note the

cardinal rule that repeals by implication are dis-

favored. See, e.g., Radzanower v. Touche Ross & Co.,

426 U.S. 148, 154 (1976); Morton v. Mancari, 417

U.S. 535, 549 (1974); Universal Interpretive Shut-

tle Corp. v. Washington Metropolitan Area Transit

Commission, 393 U.S. 186, 193 (1968). The legis-

lative intent to repeal must be clearly manifest in

the “ ‘positive repugnancy between the provisior « of

the new law, and those of the old.’” United States

v. Borden Co., 308 U.S. 188, 199 (1939). See, e.9.,

Rosenberg v. United States, 346 U.S. 273, 294-295

(1953) (Clark, J., concurring) ; United States v. Gilli-

land, 312 U.S. 86, 95 (1941); Posadas v. National

City Bank, 296 U.S. 497, 503-504 (1936). There is,

however, no repugnancy between Titles IV and VII.

Rather, as is evident from the legislative history

and the differing coverage of the two Titles de-

scribed above, Sections 922(h) and 1202(a) not

only coexist, but actually complement one another.

See also Scarborough v. United States, supra, 431

U.S. at 573. In such circumstances, “it is the duty

of the courts * * * to regard each [statute] as

effective.” Morton v. Mancari, supra, 417 U.S. at

551. Accord, e.g., Radzanower v. Touche Ross &

Co., supra, 426 U.S. at 155; Edwards v. United

States, 312 U.S. 478, 484 (1941); United States v.

Gilliland, swpra.”

Moreover, it is not readily apparent how one of

two simultaneously enacted provisions could impliedly

repeal the other.” Recognizing this difficulty, the

court of appeals pointed out that Section 922(h) was

derived in part from the Federal Firearms Act, ch.

850, 52 Stat. 1250, and that Title VII was added as

an amendment to the bill that originally contained

Title IV. But surely the doctrine of implied repeal

depends upon one statute being enacted after another

and not on the souree or time of drafting. See United

States v. Borden Co., supra; Posadas v. National City

Bank, supra; ef. United States v. Moore, 423 U.S.

122, 182-133 (1975).”

20 We further note that the presumption against implied re-

peals is particularly strong in the case of criminal statutes.

See Note, The Rosenberg Case: Some Reflections on Federal

Criminal Law, 54 Colum. L. Rev. 219, 251 (1954).

21 As previously stated, Sections 922, 924 and 1202 were

enacted at the same time as the Omnibus Act.

22 Moreover, Congress specifically reconsidered the five-year

maximum penalty provided by Section 924(a) and subse-

quently reenacted that section with slight modification in the

Gun Control Act of 1968. See page 25, supra. This reenact-

ment wholly defeats any argument that Congress intended to

or did partially repeal Section 924(a) by implication.

II. OVERLAPPING CRIMINAL STATUTES WITH DIF- |

FERENT PENALTY PROVISIONS DO NOT DENY

DEFENDANTS DUE PROCESS OF LAW

The court of appeals held that the sentencing pro-

visions of Section 1202(a) supplant the express terms

of Section 924(a) for offenses that violate both Title

IV and Title VII of the Omnibus Act. In deciding

this statutory question, the court stated that it had

“serious doubts about the constitutionality of two

statutes that provide different penalties for identical

conduct” (Pet. App. 16a). Specifically, the court sug-

gested (1) that the statutes might be void for vague-

ness (Pet. App. 9a), (2) that the existence of two

such similar statutes with dissimilar sentencing pro-

visions would implicate “the due process and equal

protection interest in avoiding excessive prosecutorial

discretion” (ibid.), and (3) that such a statutory

overlap raised separation of powers and delegation

of authority problems (id. at 10a-16a). As we now

show, the statutory overlap here is not unconstitu-

tional for any of these reasons; indeed, we think it

is fair to characterize these concerns as insubstantial.

A. Title IV Is Not Void For Vagueness

There is no merit to the contention that Title IV,

analyzed either as a separate statute or as an inde-

* pendent component of the federal gun laws, is un-

constitutionally vague. Viewed by itself, Title IV. is

a clear and specific criminal statute. Section 922(h)

sets forth with precision the categories of individuals

who are prohibited from receiving firearms that have

traveled in interstate commerce. For example, Sec-

tion 922(h) (1) clearly forbade respondent, who had

previously been convicted of murder, from receiving

the pistol in question. Concomitantly, Section 924 (a)

provides the exact range of punishment deemed by

Congress to be appropriate for violations of Section

922(h)—here, five years’ imprisonment. Neither re-

spondent nor the court of appeals has suggested any

word or phrase in these criminal provisions that is

elusive or ambiguous. See Colautti v. Franklin, No.

77-891 (Jan. 9, 1979), slip op. 11-17. In short, Title

IV “give[s] a person of ordinary intelligence fair

notice that his contemplated conduct is forbidden by

the statute.” United States v. Harriss, 347 U.S. 612,

617 (1954); see Colautti v. Franklin, supra, slip op.

11; United States v. Powell, 423 U.S. 87, 92-94

(1975).

Nor is a valid criminal statute rendered void

merely because it covers in part the same conduct

proscribed by a different statute carrying a lesser

penalty. Criminal statutes commonly overlap, and

such overlaps are to some extent desirable. For in-

stance, such overlaps help assure that culpable indi-

viduals will be less able to evade prosecution by plan-

ning their activities to fall between gaps that might

otherwise be created by provisions without any over-

lap. Moreover, overlaps in coverages are in part an

inevitable result of the limitations of language, as

well as being a product of the attempt of the crimi-

nal law to punish similarly situated people alike

while simultaneously —s out individualized jus-

tice to different gradations and types of crime. See

Rosett, Discretion, Severity and Legality in Criminal

Justice, 46 S. Cal. L. Rev. 12, 20 (1972).

In any event, regardless of whether overlapping

coverages are desirable, the fact that a person’s con-

duct violates several criminal statutes cannot possi-

bly lessen the notice afforded by particular statutes.

If a statute is void for vagueness simply because

identical proof of particular conduct would violate

more than one statute, the federal and state criminal

codes would be riddled with void provisions.”

28 For example, proof that a person submitted a false state-

ment to the Department of Housing and Urban Development

would establish a violation of both 18 U.S.C. 1001 and 18

U.S.C. 1010. The former statute carries a five-year maximum

penalty, the latter only two years. Section 1001 similarly

overlaps with numerous other provisions carrying different

penalties. See, e.g., 18 U.S.C. 287, 288, 289, 1012, 1019, 1546;

26 U.S.C. 7206, 7207; and 42 U.S.C. 408, 1395nn. Nonethe-

less, the courts of appeals have uniformly concluded as a

matter of statutory interpretation and constitutional law that

a defendant may be prosecuted and sentenced under any of

the overlapping provisions. See, e.g., United States v. Gordon,

548 F.2d 748 (8th Cir. 1977); United States v. Radetsky,

535 F.2d 556, 567-565 (10th Cir.), cert. denied, 429 U.S. 820

(1976) ; United States v. Smith, 523 F.2d 771, 780 (5th Cir.

1975), cert. denied, 429 U.S. 817 (1976); United States v.

Matanky, 482 F.2d 1319 (9th Cir.), cert. denied, 414 U.S.

1089 (1978); United States v. Eisenmann, 396 F.2d 565,

567-568 (2d Cir. 1968). See also United States v. Gilliland,

supra.

Analogous overlaps characterized by different potential

punishments abcund throughout the United States Code.

Thus, perjury before a court may violate both 18 U.S.C.

1621(1) and 1623(a). Bribery using the mails may violate

both 18 U.S.C. 1841 and 1952. F.g9., United States v. Hall,

Moreover, the major premise of the court of appeals’

analysis concerning the identity of elements between

Sections 922(h) and 1202(a) is incorrect. While we

believe: that the Due Process Clause would not bar

Congress from enacting two statutes that word for

word prohibit the same conduct but nevertheless have

different punishment provisions,“ that issue is not

even posed here. Sections 922(h) and 1202(a) are

far from identical, even though with regard to the

instant case the government’s proof sufficed to estab-

lish a violation of both provisions. As we have shown

in point I(A) (2), supra, each statute covers different

categories of individuals and prohibits different kinds

of conduct, and the requisites for proving the offenses

are somewhat different even in the case of the re-

ceipt of firearms by convicted felons. See pages 19-21,

supra.

536 F.2d 318 (10th Cir.), cert. denied, 429 U.S. 919 (1976).

The willful filing of a false tax return constitutes both a

felony (26 U.S.C. 7206) and a misdemeanor (26 U.S.C. 7207).

See United States v. Bishop, 412 U.S. 346 (1973); Berra v.

United States, 351 U.S. 181 (1956); see also Sansone V.

United States, 380 U.S. 343 (1965) ; United States v. Beacon

Brass Co., 344 U.S. 48 (1952) ; United States v. Noveck, 273

U.S. 202 (1927). There are many other examples too numer-

ous to list.

24 See, e.g., United States v. Jones, 527 ¥.2d 817, 820 (D.C.

Cir. 1975) ; United States v. Smith, supra; People v. Eboli, 34

N.Y. 2d 281, 313 N.E. 2d 746 (1974) ; People v. McCollough,

57 Ill. 2d 440, 318 N.E. 2d 462 (1974); ef. Bell v. United

States, supra, 349 U.S. at 82.

—

B. The Prosecutor’s Discretion To Charge Cases Such

As Respondent’s Under Either Section 922(h) Or

Section 1202(a) Does Not Violate The Constitution

The court of appeals suggested (Pet. App. 10a-12a)

that the overlap of Sections 922(h) and 1202(a)

raises questions of excessive prosecutorial discretion.

However, as this Court has recently reiterated, “so

long as the prosecutor has probable cause to believe

that the accused committed an offense defined by

statute, the decision whether or not to prosecute,

and what charge to file or bring before a grand

jury, generally rests entirely in his discretion.”

Bordenkircher v. Hayes, 484 U.S. 357, 364 (1978)

(footnote omitted). See United States v. Nixon, 418

U.S. 683, 693 (1974); Rosenberg v. United States,

346 U.S. 278, 294 (1953) (Clark, J., concurring)

(opinion joined by five other members of the Court) ;

United States v. Beacon Brass Co., 344 U.S. 43,

45-46 (1952); Confiscation Cases, 74 U.S. (7 Wall.)

454 (1868). Thus it is well settled that unless

the exercise of discretion is “deliberately based upon

an unjustifiable standard such as race, religion, or

other arbitrary classification,” “the conscious exer-

cise of some selectivity in enforcement is not in

itself a federal constitutional violation.” Oyler v.

Boles, 368 U.S. 448, 456 (1962), quoted with ap-

proval in Bordenkircher v. Hayes, supra. Accord,

United States v. Bell, 506 F.2d 207, 221-222 (D.C.

Cir. 1974). See generally Comment, The Right

to Nondiscriminatory Enforcement of State Penal

Laws, 61 Colum. L. Rev. 1108 (1961). Neither the

court of appeals nor respondent has suggested that

this prosecution was based on improper factors.

Underlying the pronounced judicial deference to

prosecutorial decisions regarding the selection and

institution of charges is the constitutional doctrine

of separation of powers. See, e.g., United States v.

Nixon, supra; Inmates of Attica Correctional Facil-

ity v. Rockefeller, 477 F.2d 875, 379-3880 (2d Cir.

1973) ; United States v. Bland, 472 F.2d 1329, 1835

(D.C. Cir. 1972) ; United States v. Cow, 342 F.2d 167,

171 (5th Cir.) (en banc), cert. denied, 381 U.S. 935

(1965). Article II, Section 3 of the Constitution

charges the Executive Branch with the duty to “take

Care that the Laws be faithfully executed * * *.”” The

Attorney General, on behalf of the President, has

the specific obligation to enforce the federal crimi-

nal laws. 28 U.S.C. 515, 516. These provisions

strongly suggest the inappropriateness of judicial re-

view of the government’s prosecutorial decisions, ex-

cept upon some showing that the decisional process

was tainted by unconstitutional factors.

Furthermore, judicial deference in this area reflects

the reality that “the manifold imponderables which

enter into the prosecutor’s decision to prosecute or

not to prosecute make the choice not readily amenable

to judicial supervision.” Inmates of Attica Correc-

tional Facility v. Rockefeller, supra, 477 F.2d at 380.

In deciding whether to prosecute and what violations

to charge, the prosecutor properly considers a plethora

of factors, including allocation of prosecutorial re-

sources,” the strength of the case,” and the justice

and urgency of prosecution in particular cases.” As

2° F.g., Smith v. United States, 875 F.2d 248, 247 (5th Cir.

1967) ; Rosett, Discretion, Severity and Legality in Criminal

Justice, 46 S. Cal. L. Rev. 12, 21-23 (1972); Comment, The

Right to Nondiscriminatory Enforcement of State Penal

Laws, 61 Colum, L. Rev. 1108, 1119 (1961). An evaluation of

prosecutorial resources involves whether a particular individ-

ual is more properly prosecuted by state rather than federal

authorities, as well as whether the individual warrants prose-

cution at all. See Schwartz, Federal Criminal Jurisdiction and

Prosecutors’ Discretion, 18 Law & Contemp. Prob. 64 (1948).

6 Rosett, supra note 25, at 21; Comment, supra note 25,

at 1119; Schwartz, supra note 25, at 84.

2" Prosecutorial discretion is necessary both to evaluate the

cases most appropriate for immediate prosecution because of

the wanton disregard for societal values evidenced by a par-

ticular defendant, and to alleviate harshness and render rough

justice for defendants whose conduct falls on the less censur-

able end of the spectrum of wrongdoing. See Breitel, Controls

in Criminal Law Enforcement, 27 U. Chi. L. Rev. 427-482

(1960) ; Schwartz, supra note 25, at 84; Rosett, supra note

25, at 25. The ABA Project on Standards for Criminal Justice,

The Prosecution Function and the Defense Function § 3.9

(Approved Draft 1971), summarizes the various considera-

tions as follows:

(a) In addressing himself to the decision whether to

charge, the prosecutor should first determine whether

there is evidence which would support a conviction.

(b) The prosecutor is not obliged to present all

charges which the evidence might support. The prose-

cutor may in some circumstances and for good cause

consistent with the public interest decline to_ prosecute,

notwithstanding that evidence exists which would sup-

port a conviction. Illustrative of the factors which the

prosecutor may properly consider in cxercising his dis-

cretion are:

Mr. Chief Justice (then Judge) Burger has observed

(Newman v. United States, 382 F.2d 479, 480 (D.C.

Cir. 1967) ): “Few subjects are less adapted to judi-

cial review than the exercise by the Executive of his

discretion in deciding whether to institute criminal

proceedings, or what precise charge shall be made,

or whether to dismiss a proceeding once brought.”

In light of the well established and wide ranging

discretion of prosecutors in matters relating to the

charging decision, the court of appeals’ concern about

the constitutionality of the prosecutor’s discretion to

choose between the two statutes in this case is with-

out substance. The Constitution is not offended by the

power of the Executive to decide whether to prose-

cute a case or to forego prosecution altogether. See

Inmates of Attica Correctional Facility v. Rockefel-

ler, supra; United States v. Cow, supra. Similarly,

the prosecutor, consistent with due process of law, has

untrammeled power to charge a greater offense rather

than a lesser degree of that offense, or vice versa. See

(i) the prosecutor’s reasonable doubt that the

accused is in fact guilty;

(ii) the extent of the harm caused by the offense;

(iii) the disproportion of the authorized punish-

ment in relation to the particular offense or the

offender ;

(iv) possible improper motives of a complainant;

(v) prolonged non-enforcement of a statute, with

community acquiescence;

(vi) reluctance of the victim to testify;

(vii) cooperation of the accused in the apprehen-

sion or conviction of others;

(viii) availability and likelihood of prosecution by

another jurisdiction.

Newman v. United States, supra, 382 F.2d at 481 &

n.5. Indeed, when faced with evidence that several

individuals are involved in an offense, the prosecutor

may constitutionally charge some but not others or

charge different degrees of that offense against differ-

ent individuals. 7d. at 481-482; United States v. Bell,

506 F.2d 207, 221-222 (D.C. Cir. 1974). Nor does

the Constitution limit the prosecutor’s power to

charge an individual with all or some lesser number

of the offenses he has allegedly committed or, during

the course of plea bargaining, to drop or threaten to

add charges. See Bordenkircher v. Hayes, supra. So

long as the prosecutor does not base his decisions on

invidiously discriminatory grounds, the exercise of

his broad discretion over the various aspects of the

charging decision will not violate the Constitution.”

The foregoing enumeration of prosecutorial powers

illustrates what this Court has previously made clear:

Our constitutional system allows a prosecutor to

select between two statutes, applicable to the same

conduct but carrying different penalties. See, e.g.,

** Respondent had many prior convictions, including one

for murder in 1960 (A. 11-18). Following that offense, he

served approximately 13 years of his 25-year sentence. Within

two years of his release, he was openly selling illicit firearms

and boasting that the government was unaware of his activi-

ties (Tr. 60-67). Although the prosecutor’s decision to indict

respondent under Section 922(h) is not subject to judicial re-

view in the absence of a showing that his decision was im-

properly motivated, we suggest that the foregoing circum-

stances of respondent’s offense undoubtedly prompted the

yovernment’s election in this case, as well as the district

court’s decision to impose a five-year sentence,

ibid.; United States v. Nixon, supra; Rosenberg v.

United States, supra; United States v. Beacon Brass

Co., supra. The court of appeals’ contrary conclu-

sion relies primarily on Mr. Justice Black’s dissent in

Berra v. United States, 351 U.S. 181, 185-140 (1956)

(Pet. App. 9a-10a). But Mr. Justice Black premised

his observations on the existence of two identical stat-

utes carrying different maximum penalties, 351 U.S.

at 139. And here, as we have previously established,

Sections 922(h) and 1202(a) are far from identical.

See point I(A) (2), supra.” Moreover, even if those

two gun law provisions were identical, neither logic

nor precedent supports Justice Black’s position. See,

e.g., United States v. Jones, 527 F.2d 817, 820 (D.C.

Cir. 1975); United States v. Smith, 523 F.2d 771,

780 (5th Cir. 1975), cert. denied, 429 U.S, 817

(1976); United States v. Librach, 520 F.2d 550, 556

(8th Cir. 1975), cert. denied, 429 U.S. 989 (1976) ;

Hutcherson v. United States, 345 F.2d 964, 967 (D.C.

Cir.), cert. denied, 382 U.S. 894 (1965); id. at 969

(Burger, J., concurring); People v. Eboli, 34 N.Y.

2d 281, 318 N.E. 2d 746 (1974); People v. McCol-

lough, 57 Ill. 2d 440, 818 N.E. 2d 462 (1974). Cf.

Spies v. United States, 817 U.S. 492, 497 (1943)

*” In Berra, a majority of the Court construed two sections

of the Internal Revenue Code of 1939 to cover “precisely the

same ground” despite the difference in penalties applicable

to the two sections. 351 U.S. at 184. The Court did not, how-

ever, reach any questions concerning the constitutionality of

sentencing the defendant under the felony provision rather

than the misdemeanor statute.

(indicating that identical statutes might be “un-

usual” but not unconstitutional) .”

C, Section 924(a) Does Not Constitute An Unconstitu-

tional Delegation Of Congress’ Duty To Affix Pun-

ishment

Finally, the court of appeals indicated (Pet. App.

10a-lla) that the overlap between Sections 922(h)

” It is not readily apparent why the prosecutorial discretion

incident to the existence of identical statutes with different

penalty provisions differs, for purposes of constitutional

analysis, from the firmly established prosecutorial discretion

to choose one criminal statute over another even though the

government’s proof in a particular case would be identical.

For example in Rosenberg v. United States, supra, Mr. Justice

Clark, on behalf of six members of the Court, stated that the

government could constitutionally prosecute a defendant under

the Espionage Act of 1917 rather than the Atomic Energy Act

of 1946, even though the government’s proof and the elements

of the crime would be the same with regard to a defendant

whose espionage concerned atomic secrets. And at issue in

that case was the trial court’s unilateral imposition of the

death penalty under the Espionage Act—a penalty not avail-

able under the Atomic Energy Act without a recommenda-

tion of the jury based upon specific additional findings.

Furthermore, the existence of Section 1202(a) inures to

the benefit of defendants generally. If Congress had enacted

Section 922(h) alone, as it originally intended, the prosecutor

unquestionably could choose to prosecute, thereby subjecting

a defendant to five years’ imprisonment, That the prosecutor

actually has the option to proceed under Section 1202(a) can

only reduce some defendants’ potential liability insofar as

they would otherwise be subject to five years’ imprisonment.

(It is implausiblé that a prosecutor who decided to prosecute

under Section 1202(a) would not have prosecuted at all if

only Section 922(h) existed.) Of course, the trial court re-

tains the power to give a sentence of two years or less under

either statute.

and 1202(a) somehow may amount to an unconstitu-

tional delegation to the Executive Branch of Con-

gress’ responsibility to establish penalties for viola-

tions of the criminal laws. Initially we note that this

point does not appear to differ in essence from the

court’s concern about excessive prosecutorial discre-

tion. In any event, whatever vitality the doctrine of

unconstitutional delegation may currently retain (see

generally McGowan, Congress, Court, and Control of

Delegated Power, 77 Colum. L. Rev. 1119, 1127-11380

(1977)), it is certainly not applicable here. Section

922(h) unquestionably prohibited respondent from

receiving a firearm that had traveled in interstate

commerce, and Section 924(a) explicitly sets forth

the range of penalties deemed by Congress to be ap-

propriate for violations of Section 922(h)."’ In short,

Congress properly and expressly exercised its power

to define criminal activity and to affix punishment

therefor; it did not leave the courts to guess at either

the conduct prohibited or the appropriate range of

penalties. Compare United States v. Evans, 333 U.S.

483 (1948).”

If anything, it is the court of appeals’ decision, and

not the overlap between Sections 922(h) and 1202

(a), that raises serious questions concerning the ap-

propriate roles of the coordinate branches of govern-

“At the same time, Section 1202(a) defines a separate,

albeit similar, crime and the applicable punishment.

%¢ Respondent does not contend that the five-year maximum

penalty constitutes cruel and unusual punishment in viola-

tion of the Eighth Amendment.

. o_o

ment. The unwarranted reconstruction of the federal

gun laws effected by the court below substantially

trenches upon Congress’ broad discretion to enact

criminal laws and to affix the appropriate range of

punishments. See, e.g., Bell v. United States, supra,

349 U.S. at 82. In addition, insofar as the decision

calls into question the prosecutor’s traditional discre-

tion to charge one crime rather than another, it in-

fringes the Executive’s constitutional duty to enforce

the laws. Congress has specified that violations of

Section 922(h) are punishable by up to five years’ im-

prisonment, and the federal prosecutor properly de-

cided to proceed against respondent under Section

922(h). Following conviction, the district court de-

termined that it was appropriate to sentence respond-

ent to five years’ imprisonment in light of respond-

ent’s history and the circumstances of the offense.

See note 28, supra. There is no justification for the

court of appeals’ interference with these wholly ap-

propriate exercises of power.

CONCLUSION

The judgment of the court of appeals should be

reversed.

Respectfully submitted.

MARCH 1979

WADE H. MCCREE, JR.

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

ANDREW L. FREY

Deputy Solicitor General

ANDREW J. LEVANDER ™

Assistant to the Solicitor General

SIDNEY GLAZER

FRANK J. MARINE

Attorneys

WU. S. GOVERNMENT PRINTING orrice; 1979 287764 350

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