Petition — Meldish v. United States

Office - Supreme Court, U.S

FILED

JAN 498 1004

83-118}

In THE ALEXANDER t.. STEVAS.

CLER<

Supreme Court of the Unite

Ocroser Term, 1983

——

tes

MICHAEL ANGELO MELDISH,

Petitioner,

v.

Unitep STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIOi“ARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Jacos KossMAN,

1325 Spruce Street

Philadelphia, PA 19107

(215) 735-5084

Counsel for Petitioner

QUESTIONS PRESENTED

I. Whether a non-violent Customs offense, 18 U.S.C.

§ 542, is a predicate offense under the Gun Con-

trol Act of 1968.

II. Whether the Gun Control Act as applied to this case

creates an irrational classification between non-

violent trade regulation offenses and other similar

non-violent offenses in violation of the Due Process

Clause of the Fifth Amendment.

III. Whether hunting weapons are “firearms” under the

Gun Control Act of 1968.

PARTIES TO THE PROCEEDING

The only parties to this proceeding are those named in

the caption of the case.

TABLE OF CONTENTS

QUESTIONS PRESENTED ...................

PARTIES TO THE PROCEEDING ............

TABLE OF AUTHORITIES ..................

I ws... cw cae e cee ce cess

Te cae cscs sv cccvces

CONSTITUTIONAL PROVISIONS AND

MCC EMEED ovaccccccesscessccs

REASONS FOR GRANTING THE WRIT .......

Il.

Whether Non-Violent Trade Regulation Offenses,

in This Instance a Customs Offense, Are Predicate

Offenses For Purposes of the Gun Control Act,

Is An Important Question of Federal Law Which

Has Not Been, But Which Should Be Settled By

The Gun Control Act as Applied to This Case

Creates an Irrational Classification Between Non-

Violent Trade Regulation Offense and Other

Similar Non-Violent Offenses and Thus Poses an

Important Question of Constitutional Law

Which Has Not Been, But Which Should Be

ON PPE PCT ETT TTT

1!

iv

TABLE OF CONTENTS

III. Whether Hunting Weapons are “Firearms”

Under the Gun Control Act of 1968 Is An Im-

portant Question of Federal Law Which Has Not

Been, But Which Should Be Settled by This

SO PEA ere r Tiyt Pree re sy ee

PEED. 6c soccer eevevbecseresscaeses

APPENDIX A

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APPENDIX B

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APPENDIX C

BENCH OPINION OF DISTRICT COURT ....

APPENDIX D

RELEVANT SECTIONS

THE GUN CONTROL ACT OF 1968.......

CHAPTER 27, CUSTOMS, U.S. CRIMINAL

GEE os claw cctveenneeeese.s bbe keewena

Page

16

21

A-11

v

TABLE OF AUTHORITIES

Cases: Page

Barret v. United States, 423 U.S. 212 (1976)... 13, 21

Bearden v. Georgia, 103 S. Ct. 2064 (1983) ... 13, 13n

Bolling v. Sharpe, 347 U.S. 497 (1954)........ 12a

Carey v. Brown, 447 U.S. 455 (1980)......... 12

Cody v. United States, 460 F. 2d 34 (8th Cir.),

cert. denied, 409 U.S. 1010 (1972) ......... l4n

Dickerson v. N wv Banner Institute, Inc.,

fF ee 7, 10, 11

13, 21

Dunn wv. United States, 442 U.S. 100, 112 (1979) 9

Eisenstadt v. Baird, 405 U.S. 438 (1972) ...... 13

Ford Motor Credit Co. v. Milhollin, 444 U.S. 555

CN hus vox tawneweenuces Rh! Hace STR 9

Grayned v. Rockford, 408 U.S. 92 (1972) ..... 12

Huddleston v. United States, 415 U.S. 814, 830-831

SEE a enc aUl ada bene atucndeeneeceenue cs 10, 13, 21

Jones v. United States, 103 S. Ct. 3043 (1983) . 13, 13n

Kolender v. Lawson, 103 S. Ct. 1855 (1983) ... 9

Lewis v. United States, 445 U.S. 55, 68 (1980) . 6, 11

Marshall v. United States, 414 U.S. 417 (1974) . 12

Red Lion Broadcasting Co. v. F.C.C., 395 U.S. .

IS WE ous o.0'eo necks beVbcabienceks 9

Rewis v. United States, 401 U.S. 808 (1971) ... 10

vi

Scarborough v. United States, 431 U.S. 563, 577

UG cup halga yee cbhen seduce duces

Shapiro v. Thompson, 394 U.S. 618 (1969) ....

Schneider v. Rusk, 377 U.S. 163 (1964) .......

Udall v. Tallman, 380 U.S. 1 (1965)..........

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

United States v. Batchelder, 442 U.S. 114, 123

ee i ae i dc wes.ce sc

United States v. Craven, 478 F. 2d 1329 (6th Cir.),

cert. denied, 414 U.S. 866 (1973) ..........

United States v. Friday, 404 F. Supp. 1343, 1347-

1348 (6.D. Mich. 1974)...................

United Staes v. Giles, 640 F. 2d 621 (5th Cir. 1981)

United States v. Weatherford, 471 F. 2d 47

(7th Cir. 1972), cert. denied,

ee vice ce cwe ves scccccccs

United States v. Weingartner, 485 F. Supp. 1167,

(D.N.J.) aff'd mem., 642 F.d 445

os | ee 0) Re

Zenith Radio Corp. v. United, 437 U.S. 443

a oy eek ewes <cvibs ones

10, 13n

9, 13, 20,

21

14n

14

14n

l4n

al

STATUTES

Page

NN PTET ETT Cee 14n, 15

RE Ee ae passim

Chapter 27, Customs, U.S. Criminal Code .

a cb asidcbcbenacseasaes 2

ee 2

Gun Control Act of 1968, 18 U.S.C. §§ 921-928 passim

Title IV, Omnibus Crime Control and

Safe Streets Act of 1968, Pub. L. 90-351

(90th Cong., 2d Sess. June 19, 1968) ....... 7, 11, 13

17, 18

OTHER

U.S. Treasury, Annual Report 1979 .......... 7n, 8

3 U.S. Cong. & Admin. News 4425 (1968) .... 17

In THE

Supreme Court of the United States

Ocroser TERM, 1983

MICHAEL ANGELO MELDISH,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Petitioner hereby petitions for a writ of certiorari to

review the judgment of the United States Court of Appeals

for the Second Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App. A, infra, A-l

- A-7) is not yet reported. The bench opinion of the district

court is reproduced in Appendix C, infra, A-1l.

JURISDICTION

The judgment of the court of appeals (App. B, infra, A-9)

was entered on November 28, 1983. The jurisdiction of this

Court is invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

1. United States Constitution. The Fifth Amendment

to the Constitution provides:

* * * nor shall any person . . . be deprived

of life, liberty, or property, without due pro-

cess of law * * *

2. The Gun Control Act of 1968, 18 U.S.C. §§ 921-928.

Relevant sections of the Gun Control Act provide in

pertinent part as reproduced herein at Appendix D,

(A-18- A-22).

3. Chapter 27, Customs, U.S. Criminal Code, 18 U.S.C.

§§ 541-552. The relevant sections of the chapter on

Customs in the Criminal Code provides in pertinent

part as reproduced herein as Appendix D (A-22).

STATEMENT

This federal criminal prosecution resulted in peti-

tioner’s conviction of two offenses under the Gun Con-

trol Act of 1968. Jurisdiction of the district court

(S.D.N.Y.; Ward, D.J.) is based upon 18 U.S.C. § 3231.

While the case was tried before a jury, the facts are

not in dispute.

In 1982, petitioner purchased two Browning 2000

shotguns (A 93)' and two John Wayne commemorative

rifles (A 108) from the Allsports Sporting Store, an

established and reputable seller of sporting goods in

Yonkers, New York (A 65). The buyer simultaneously pur-

chased a hunting license from the sporting goods store (A

31-33, 37-38, 180-181).* An Allsports salesman, using in-

formation supplied by petitioner, filled in Firearm Tran-

saction Record forms to identify petitioner as the purchaser

of the four weapons. (A 95, 104). The trial court found

that the weapons purchased by petitioner were of the kind

ordinarily used by sportsmen for hunting and recreational

use.’ (A 180-181).

' Citations to pages with the prefix “A” refer to the Joint Appendix

in the Court below.

? The trial court refused to permit petitioner to introduce evidence

concerning the purchase of the hunting license before the jury (A 31-33,

7-38). While the government did not contest the fact that petitioner

had purchased the hunting license, the government objected that

evidence concerning the purchase of the hunting license should not

be presented to the trial jury.

* The trial court did not permit petitioner to introduce evidence

before the jury to show the character of the weapons. At the close of

the evidence, the trial court stated to counsel for petitioner:

You have preserved your point, I have precluded you

from putting in proof that they are sporting weapons

. . » » [have ruled that whether or not they are spor-

ting weapons, and I will tell you that I believe they

are and I will even add that they may well be, at least

two of them may have cultural value — I have ruled

that this is not an issue in this case, and it is not a

question for the jury. It is a legal question which, after

hearing from you, I have determined. That would

leave you, in my judgment, with an appropriate ap-

peal. (A 180-181).

This transaction became a federal criminal prosecution

under two related sections of the Gun Control Act of

1968.‘ Section 922(h)(1) of that Act prohibits receipt of a

firearm by persons previously convicted of certain defin-

ed crimes. Petitioner had been convicted of a Customs of-

fense four years earlier. The courts below held that this

conviction was a predicate offense for purposes of

§ 922(h)(1). Section 922(a)(6) of the Gun Control Act pro-

hibits making of a false statement of a material fact to the

seller of a firearm. The courts below found that petitioner

had falsely denied that he had been convicted of a predicate

offense when he purchased the hunting weapons.

Petitioner's prior conviction, established in the court

below by stipulation of the parties (A 153), was based upon

a charge that he had brought into the United States a lady’s

bracelet watch worth $9,000 by means of a false or

fraudulent customs declaration, in violation of 18 U.S.C.

§ 542. Punishments authorized for violations of § 542 are

imprisonment for a term of two years or a fine of $5,000,

or both. It was stipulated that petitioner had received a

two-year suspended prison sentence, a $5,000 fine, and had

been placed on probation for two years.

During the transaction in Allsports Sporting Store, as

already mentioned, the salesman filled in part of the

Firearm Transaction Record form required for each

weapon. These forms, prepared by the Bureau of Alcohol,

Tobacco and Firearms, an agency of the Treasury Depart-

ment, contain a set of eight printed questions. One ques-

tion is: “Have you been convicted in any court of a crime

* The prosecution originally obtained a 13-count indictment (A 39).

Before trial this was superseded by a three-count indictment (A 8-11).

After the close of evidence, the trial court dismissed one count charg-

ing petitioner with conspiracy (A 218).

punishable by imprisionment for a term exceeding one

year?” Next to that question on each form is written “no”;

it was stipulated that a government handwriting expert

having received samples of petitioner's handwriting, had

no opinion as to the authorship of the “no” on those forms

(A 192). It was further stipulated that petitioner had signed

his name on the signature line of each of the forms (A 160).

On the basis of the Customs’ offense, the jury found peti-

tioner guilty of unlawfully receiving a firearm in viola-

tion of § 922(a)(6) (A 280-281). Defense motions for judg-

ment of acquital and new trial were denied by the district

court (A 371). The court held that the petitioner’s Customs

offense was a predicate offense under the Gun Control Act

and, therefore, that the statements on the records forms

were false in a material fact.

On the unlawful receipt county, the district court

sentenced petitioner to imprisonment for a term of three

months; on the false statement count, the trial court im-

posed three years probation to run consecutively with the

prison term.’ (A 383).

The Court of Appeals for the Second Circuit (Oakes,

Van Graafeiland and Winter, C.JJ.) affirmed. The opi-

nion of that court by Judge Van Graafeiland appears in

Appendix A, infra, A-1 - A-7.

* The district court delivered an oral opinion from the bench to ex-

plain his denial of the defense motions (App.C, infra A-11).

REASONS FOR GRANTING THE WRIT

I. Whether Non-Violent Trade Regulation Offenses, in

This Instance a Customs Offense, Are Predicate Offenses

For Purposes of the Gun Control Act, Is An Important

Question of Federal Law Which Has Not Been, But

Which Should Be Settled By This Court.

The Gun Control Act of 1968, 18 U.S.C. §§ 921-928,

is a major statute that regulates numerous actions that in-

volve firearms. Manufacture, importation, shipment, sale

and receipt of firearms are controlled by a complex web

of licensing requirements and prohibited activities. Fun-

damental to the structure of the Gun Control Act is the

idea of prior criminal conviction or prosecution. Congress

sought to exclude from manufacture, distribution and

receipt of firearms persons who had committed or who

were charged with committing crimes of violence.

The Gun Control Act contains a definition of predicate

offenses that excludes trade related offenses. Congress con-

cluded, rationally, that persons convicted of or charged

with trade related offenses pose no threat to community

peace. The first question presented in this case is the im-

portant issue of the scope of the exclusion for trade related

offenses. '

The critical language of the Act excludes from the

category of predicate offenses —

* * * 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 Secretary [of the Treasury] may by regula-

tion designate * * * (921(a)(20)(A).

The language of exclusion was found in § 921(b)(3) of Ti-

tle IV of the Omnibus Crime Control and Safe Streets Act

of 1968, Pub. L. 90-351 (90th Cong., 2d Sess., June 19,

1968). When Title IV was amended in December of 1968

to become the Gun Control Act, the exclusion language

was moved to § 921(a)(20)(A).

The meaning of this important provision of the Gun

Control Act has not been considered in a decision of this

Court. The Court has, however, taken note of the exclu-

sion. In a case decided by this Court last Term, Dicker-

son Inc., v. New Banner Institute, 103 S. Ct. 986 (1983),

Justice Blackmun, in the opinion of the Court, noted:

The Act provides exemptions from its proscrip-

tions for certain business and commercial crimes,

such as antitrust violations * * * (Jd. at 988 n. 1).

The Court in Dickerson had no occasion to construe

§ 921(a)(20)(A) because “these statutory exemptions are of

no relevance here.” [bid.

The offense of which petitioner was convicted in 1978

is an offense “pertaining to antitrust violations, unfair trade

practices, [and] restraints of trade.” While the Customs

laws of the United States have a minor revenue purpose,’

their principal object is to regulate business practices of

international trade. Nations engaging in international com-

merce have sophisticated regulatory systems to control the

* Prior to World War I and the development of federal income taxes,

customs receipts were a substantial part of the revenues of the United

States Government. Today, however, the revenue purpose to Customs

laws is minimal. In 1982, Customs duties were 1.4% of the Govern-

ment’s receipts. Treasury Bulletin, lst Quarter Fiscal 1983, pp. 4-5.

That has been the pattern for many years, since well before enact-

ment of the Gun Control Act. See U.S. Treasury Department, An-

nual Report 1979, Statistical Appendix, Table 2.

flow of goods into their respective domestic economies.

Customs duties are integral to the regulation of importa-

tion of goods. Duties are imposed to protect domestic pro-

ducers of the same or similar goods from unfair competi-

tion by those who would import manufactured goods. The

criminal code provision in 18 U.S.C. § 542, of which peti-

tioner was convicted, is an important tool for enforcement

of this regulatory scheme.’ As the Annual Reports of the

Treasury Department regularly observe, the mission of the

Customs Service is “to protect American trade and com-

merce.” See U.S. Treasury, Annual Report 1979, p. 201.

The conclusion that a § 542 offense is excluded from

predicate offenses under the Gun Control Act is confirm-

ed by ruling of the Treasury Department bureau charged

with responsibility to implement the Act. Sears, Roebuck

& Co. has been indicted for violating § 542. If this were

a predicate offense under the Gun Control Act, Sears

would be disabled from receipt or sale of firearms. The

licensing provision of the Gun Control Act, § 923(d)(1)(B),

uses the same predicate offense definition that is involved

in petitioner’s case. In a 1980 ruling on Sears’ situation,

the Bureau of Alcohol, Tobacco and Firearms (ATF) con-

cluded that a § 542 offense pertains to Customs laws

designed to protect domestic industry from unfair foreign

competition and, therefore, is not a predicate offense under

the Gun Control Act (A 293-294). ATF repeated its con-

clusion concerning exemption of § 542 offenses in another

ruling issued in 1982 (A 295-297).

” The court below did not disagree with this characterization of the

legislative purpose of § 542. The court of appeals held that § 542 was

not excluded as a predicate offense because it did not include effect

on competition or injury to consumers as an element of the offense.

Given that the overall design of the Customs laws and enforcement

provisions is to regulate commerce, it is immaterial that the particular

enforcement provision, in aid of Customs assessments, does not re-

quire proof of economic injury.

Interpretation of a federal statute by the agency charged

with its administration should be given considerable

respect. This Court has repeatedly declared that “the con-

struction of a statute by those charged with its execution

should be followed unless there are compelling indications

that it is wrong.” Red Lion Broadcasting Co. v. F.C.C.,395

U.S. 367, 381 (1969); see also Ford Motor Credit Co. v.

Milhollin, 444 U.S. 555 (1980); Zenith Radio Corp. v.

United States, 437 U.S. 443 (1978); Udall v. Tallman, 380

U.S. 1 (1965).

Notwithstanding this established principle of judicial

deference to administrative interpretation of statutes, the

court of appeals below wholly ignored the significance of

the ATF rulings. The opinion of that court makes no

reference to them.

Petitioner's contention that a § 542 offense is not a

predicate offense under the Gun Control Act is not only

consistent with and confirmed by the rulings of ATF, but

is reinforced by the general principles espoused by this

Court for the interpretation of federal criminal statutes.

A criminal statute is constitutionally invalid if it fails to

give a person of ordinary intelligence fair notice that his

contemplated conduct is forbidden. United States v.

Batchelder, 442 U.S. 114, 123 (1979). See also Kolender v.

Lawson, 103 S. Ct. 1855 (1983); Dunn v. United States,

442 U.S. 100, 112 (1979). When questions arise concerning

the ambit of a criminal statute, resolving those questions

in favor of lenity avoids collision with fundamental re-

quirements of due process of law.* In the related princi-

ple of lenity as a maxim of statutory construction, this

Court holds that where there is ambiguity in a criminal

* The constitution question is presented in this case if the Gun Con-

trol Act is interpreted to include Customs offenses under 18 U.S.C.

§ 542 as predicate offenses. See Point II of the Petition, infra.

10

statute, the ambiguity should be resolved in favor of a

defendant. United States v. Bass, 404 U.S. 336 (1971); Rewis

v. United States, 401 U.S. 808 (1971); see also Scarborough

v. United States, 431 U.S. 563, 577 (1977); Huddleston v.

United States, 415 U.S. 814, 830-831 (1974).

The ATF rulings demonstrate, at a very minimum, that

persons of ordinary intelligence can read the Gun Control

Act as excluding § 542 offenses from the category of

predicate offenses. The exemption language excludes any

and all Federal or State offenses “pertaining to” antitrust

violations, unfair trade practices, and restraints of trade.

ATF officials were sensitive to the leeways created by the

“pertaining to” phrase in§ 921(a)(20)(A). The courts below,

however, ignored that language, which permits and re-

quires a liberal reading of the statutory language. Congress’

intent to have this language broadly construed is manifest

in the power given to the Treasury Secretary to add addi-

tional offenses relating to regulation of business

practices.’

How widely § 921(a)(20)(A) should be read ultimately

is not an issue presented by this case. Certainly, as this

Court said in Dickerson, the exemption could reach a body

of “business and commercial crimes.” For the immediate

case, the issue presented is whether the exemption reaches

Customs offenses prescribed by § 542. Decision of that issue

by this Court will add significantly to the clarity of the

Gun Control Act and to its further administration by lower

courts and administrative agencies.

* The Secretary of the Treasury has not acted pursuant to this

authority.

This Court has already addressed another facet of the

definition of predicate offenses under the Gun Control Act.

In Dickerson, this Court decided that a conviction expung-

ed under Iowa law was nonetheless a conviction for pur-

poses of the Gun Control Act. Dickerson v. New Banner

Institute, Inc., supra. The Court has also considered the

definition of predicate offenses under the companion gun

control provisions in Title VII of the Omnibus Crime Con-

trol and Safe Streets Acts, 18 U.S.C. App. §§ 1201-1203.

Lewis v. United States, 445 U.S. 55 (1980).

Guidance by the Court on the scope of the exemption

from the Gun Control Act for trade regulation offenses,

as presented in this case, involves concerns that are broader

and intrinsically more significant to implementation of the

statute than were the issues presented in Dickerson and

Lewis, both of which were held by this Court to merit

review by writ of certiorari. It is respectfully submitted that

this Court should grant the petition for certiorari.

II. The Gun Control Act as Applied to This Case Creates

an Irrational Classification Between Non-Violent Trade

Regulation Offense and Other Similar Non-Violent Of-

fenses and Thus Poses an Important Question of Con-

stitutional Law Which Has Not Been, But Which

Should Be Settled By This Court.

If this Court finds, notwithstanding petitioner's first

point, that a Customs offense under 18 U.S.C. § 542 is a

predicate offense under the Gun Control Act, then that

Act as applied in this case in unconstitutional. When a

statute divides persons into classes and draws legal distinc-

tions between the classes, the Constitution requires a ra-

tional explanation for the differential treatment. The Gun

Control Act's classification of non-violent trade offenders,

exempting one group and not the other, fails to meet this

constitutional requirement.

12

Under the Gun Control Act, it is lawful for certain per-

sons to receive firearms (and to engage in all other con-

duct regulated by the Act) even though they have been

convicted of prior crimes. By virtue of § 921(a)(20)(A), per-

sons who have committed offenses pertaining to antitrust

violations, unfair trade practices, or restraints of trade are

under no disability. The obvious rationale for this provi-

sion in a gun control act is that persons who have com-

mitted such trade related offense have shown no propen-

sity for violence. But persons may have committed other

trade offenses which equally lack any showing of propen-

sity for violence. On the facts of this case, petitioner's on-

ly prior conviction was for making a false or fraudulent

statement in connection with importion of goods into the

United States. Nothing in the definition of that crime sug-

gests that a violator poses any risk whatsoever of future

violent behavior.

The Gun Control Act thus divides the broad category

of non-violent trade offenses into two classes. In one class

are trade regulation offenses, which are excluded as

predicate offenses under the Gun Control Act. The re-

mainder of the category of non-violent trade offenses, in-

cluding specifically the Customs offenses proscribed by 18

U.S.C. § 542, are put into a second class, which is treated

by the Gun Control Act in the same manner as all crimes

of violence. This division of non-violent trade offenses in-

to two classes, with such sharply divergent treatment,

renders the Gun Control Act as applied in this case

unconstitutional.

Implementing the Due Process Clause of the Fifth

Amendment, this Court has held in many cases that, where

a law creates classification schemes that discriminate bet-

ween groups of people, there must be a ground of dif-

ference between the classes that explains the differential

in treatment. E.g. Carey v. Brown, 447 U.S. 455 (1980);

Marshall v. United States, 414 U.S. 417 (1974); Grayned

13

v. Rockford, 408 U.S. 92 (1972); Eisenstadt v. Baird, 405

U.S. 438 (1972). Several cases decided by this Court at the

end of the last Term applied the requirement of a rational

basis for discriminations between classes of persons.

Bearden v. Georgia, 103 S. Ct. 2064 (1983); Jones v.

United States, 103 S. Ct. 3043 (1983)."

The Gun Control Act has been considered by this Court

in four previous cases, but none of those cases raised the

constitutional question presented here. See Huddleston v.

United States, 415 U.S. 814 (1974); Barrett v. United

States, 423 U.S. 212 (1976); United States v. Batchelder,

442 U.S. 114 (1979); Dickerson v. New Banner Institute,

Inc., 103 S. Ct. 986 (1983). A quite different constitutional

challenge was made to the Gun Control Act in Batchelder;

the contention was founded on the overlap between the

Gun Control Act and Title VII of the Omnibus Crime Con-

trol and Safe Streets Act, 18 U.S.C. § 1202."

’ The constitutional principle applied in these cases is closely akin

to the requirement, explicit in the Fourteenth Amendment, of equal

protection of the laws. Recent opinions of this Court have indicated

that the requirements of due process of law and equal protection of

the laws tend to converge. See, e.g. Bearden v. Georgia, supra; Jones

v. United States, supra. And see Shapiro v. Thompson, 394 U.S. 618

z)1969); Schneider v. Rusk, 377 U.S. 163 )1964): Bolling v. Sharpe,

347 U.S. 497 (1954).

'' In the first case to come before this Court under 18 U.S.C. §

1202, an equal protection challenge was made to Title VII. Section

1202 is structured in a different way than the Gun Control Act. The

constitutional challenge was therefore different from that presented

here. This Court reversed the conviction in that case on the basis of

construction of the statute, and the constitutional question was not

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

14

Petitioner is unaware of any lower court case in which

the constitutional question presented here was raised. A

district court took judicial notice that not all persons in-

volved in crimes punishable by more than a year have

violent propensities, but since the defendant in that case

had been convicted of a crime of violence, the court’s notice

had no effect on its decision. United States v. Friday, 404

F. Supp. 1343, 1347-1348 (E.D. Mich. 1975). See also

United States v. Weingartner, 485 F. Supp. 1167 (D.N.J.)

aff'd mem., 642 F.2d 445(3d Cir. 1981).

‘2 A number of courts have held that the Gun Control Act is con-

stitutional, rejecting claims of denial of equal protection of the laws,

on the ground that the Act defines predicate offenses to include only

“serious” crimes. E.g., United States v. Giles, 640 F.2d 621 (5th Cir.

1981). See also United States v. Craven, 478 F.2d 1329 (6th Cir.), cert.

denied, 414 U.S. 866(1973); United States v. Weatherford, 471 F.2d

47 (7th Cir. 1972), cert. denied, 411 U.S. 972 (1973); Cody v. United

States, 460 F.2d 34 (8th Cir.), cert. denied, 409 U.S. 1010 (1972). The

offenses excluded as predicate offenses by § 921(a)(20)(A) cannot be

classifed as “non-serious.” Violations of the Sherman Act, for exam-

ple, subject offenders to possible imprisonment for a term of three years

and to a fine of up to $1 million. 15 U.S.C §§ 1,2. The classification

of predicate offenses under the Gun Control Act cannot be rationally

explained on the ground that Congress excluded “non-serious” crimes

and included only “serious” offenses.

Even though the distinction between “serious” and “non-serious”

crimes is patently invalid, it was the ground on which the district court

upheld petitioner's conviction. The court said:

In order to promote the [legislative] goal, Congress deter-

mined to prohibit the receipt of firearms by those who in

the past have been convicted of serious crimes, whether

violent or nonviolent in nature, to wit: felonies. This pro-

hibition was clearly rational.

The court of appeals below cited Giles in its opinion, but did not overt-

ly accept the view that the classification of predicate offenses is ra-

tional because it excludes only “non-serious” offenses.

15

The court of appeals below accepted the premise that

the constitutionality of the Gun Control Act’s classifica-

tion of predicate offenses turns upon the likelihood that

an offender would misuse a firearm. The court of appeals

implicitly rejected the rationale of the district judge, who

concluded that Congress had defined predicate offenses to

be “serious” crimes." The Second Circuit correctly noted

that there are severe criminal sanctions for violations of

the antitrust laws, citing 15 U.S.C. §§ 1 and 2. That court

held nonetheless that

* * * there is nothing irrational or illegal in Con-

gress’ belief that trade offenders would be less like-

ly to misuse a gun than would other criminals

such as forgers, drug peddlers, or receivers of

stolen property (App., A-6).

The court of appeals compared trade offenses with whol-

ly dissimilar crimes. Quite a different result follows if the

comparison is with the offense of which petitioner had been

convicted. It is both irrational and illogical to believe that

violators of the Customs laws, particularly 18 U.S.C. § 542,

would be more likely to misuse a gun than would trade

offenders. If the comparison is made between trade offenses

and similar non-violent crimes, the Gun Control Act as ap-

plied in this case is unconstitutional.

The constitutional question posed by the Gun Control

Act’s classification of predicate offenses is manifestly an

important question of federal law which has not been, but

which ought to be decided by this Court. It is respectfully

submitted that the petition for a writ of certiorari should

be granted.

'° See note 12 supra.

16

III. Whether Hunting Weapons are “Firearms” Under the

Gun Control Act of 1968 Is An Important Question of

Federal Law Which Has Not Been, But Which Should

Be Settled by This Court.

Petitioner contends that ordinary hunting weapons were

excluded by Congress from the scope of the Gun Control

Act of 1968. Petitioner has been convicted for purchasing

four hunting weapons, together with a hunting license,

from an established and reputable sporting goods store.

Buyer's identity was openly revealed to the seller, who pro-

perly made a record of the sales on Treasury Department

forms signed by the buyer. This Court has noted that gun

control laws are addressed to those who acquire guns sur-

repititiously. Scarborough v. United States, 431 U.S. 563,

576 (1977). There was nothing surreptitious or suspicious

in the transaction between petitioner and Allsports Spor-

ting Store. Petitioner contends that the Gun Control Act

of 1968 does not make this kind of transaction into a federal

crime.

Congressional intent to make special provision for hun-

ting weapons is manifest on the face of the Gun Control

Act. Hunting weapons are plainly exluded from the defini-

tion of “destructive device.” § 921(a)(4). The function of

“destructive device” is to define “firearm.” Every “destruc-

tive device” is a “firearm.” § 921(a)(3). Section 922, the sec-

tion of the Act that defines unlawful acts, with minor ex-

ception, “ applies to transaction in “firearms.” The gist of

petitioner's argument is that the special exclusion of hun-

ting weapons in § 921(a)(4) carries through to narrow the

definition of “firearm.”

'* See §§ 922 (a)(4) and (b)(4).

17

This reading of the Act is confirmed by the legislative

history. Several months prior to enacting the Gun Control

Act in December 1968, Congress passed the Omnibus

Crime Control and Safe Streets Act. Pub. L. 90-351, 90th

Cong., 2d Sess. Title IV of the latter Was the predecessor

of the Gun Control Act. Title IV was essentially limited

to regulation of handguns and weapons of war. Congress

achieved this result by excluding long guns from the defini-

tion of “destructive device.” § 921(b)(2)(C) and (D).” Ti-

tle IV used “destructive device” as a sub-definition of

“firearm” in the same way as the Gun Control Act. One

of the reasons for replacing Title IV with the Gun Con-

trol Act was the view that the limitation to handguns in

Title IV was too strict. When the Attorney General in-

formed Congress that Justice Department supported enact-

ment of the Gun Control Act he cited the extension of con-

trol to some long guns as reason for that support. 3 U.S.

Cong. & Admin. News 4425 (1968).

This history is significant because both Title IV and the

Gun Control Act define “firearm” independently of

“destructive device.” Both statutes define “firearm” to mean

any “weapon (including a starter gun) which will. . . ex-

pel a projectile by the action of an explosive.” Gun Con-

trol Act, § 921(a)(3)(A); Title IV § 921(a)(3). On a super-

ficial reading, this definition could include all guns, short

or long. This superficial reading of Title IV would have

resulted in its provisions encompassing all long guns. The

'® Section 921(b)(2)(C) and (D) provided:

(b) As used in this chapter — ...

(2) The term “destructive device” shall not include — ...

(C) any shotgun other than a short-barreled shotgun, or

(D) any non automatic rifle (other than a short-barreled

rifle) generally recognized or particularly suitable for use

for the hunting of big game.

18

Justice Department's support of amending Title IV to add

long guns would have made no sense. Plainly, given the

history of Title IV, Congress narrowed the scope of its gun

control legislation by excluding long guns from “destruc-

tive device” and, through that limitation, narrowed the

meaning of “firearm,” the key provision in the operative

sections of the act. Congress followed exactly the same pat-

tern in the Gun Control Act.

In replacing Title IV with the Gun Control Act, Con-

gress did not bring all long guns into the scope of the Act.

Congress excluded hunting weapons. The exclusion for

hunting rifles appears in the last paragraph of § 921(a)(4);

The term “destructive device” shall not in-

clude ... any other device which ... is a

rifle which the owner intends to use solely

for sporting . . . purposes.

With respect to hunting shotguns, the exclusionary

language appears in § 921(a)(4)(B):

The term “destructive device” means — .. .

(B) any type of weapon (other than a

shotgun or a shotgun shell which the

Secretary finds is generally recognized as par-

ticularly suitable for sporting purposes). . .

The record in this case shows that petitioner purchased

two hunting riles and two hunting shotguns. At trial, peti-

tioner sought to prove that he had acquired the hunting

rifles for sporting purposes, but the evidence was exclud-

ed on objection by the government. At the end of the trial,

the district judge stated:

I have precluded [defense counsel] from put-

ting in proof that they are sporting weapons

... » | will tell you I believe they are and

I will even add that. . . at least two of them

19

may have cultural value. I have ruled that

this is not an issue in this case, and it is not

a question tor the jury. It is a legal question

which, after hearing from you, I have deter-

mined. That would leave you, in my judg-

ment, with an appropriate appeal (A

180-181).

The district court also declared that petitioner's intention

in purchasing the hunting weapons was irrelevant (A

365)."° For purposes of appellate review, therefore, it is

established that the four guns that petitioner purchased

from Allsports Sporting Store were hunting weapons and

that his intention was to use them for that purpose.

The government maintains that it is not sufficient that

a court has found the weapons to be hunting weapons. The

government argues that it is also necessary that the

Secretary of the Treasury so find. With respect to shotguns,

§ 921(a)(4)(B) contemplates a finding by the Secretary, but

it is inconceivable that the Secretary would disagree with

the district judge in concluding that the two Browning 2000

shotguns, standard hunting weapons used throughout the

country, were not “generally recognized as particularly

suitable for sporting purposes.” With respect to hunting

rifles, the Gun Control Act contemplates no finding by the

Secretary as to the nature of the weapons.

The government also argues that it is not sufficient that

petitioner’s innocent intention to use the hunting weapons

for sporting purposes has been judicially established. The

government contends that this finding must be made by

'* To prove his intent in purchasing hunting weapons, petitioner at-

tempted to prove that he simultaneously purchased a hunting license.

On government objection, the court excluded this evidence (A 31-33,

37-38).

20

the Secretary of the Treasury. This argument is neither a

plausible reading of the Act nor a reasonable interpreta-

tion of the legislative intent.”

Whether hunting weapons are excluded from the Gun

Control Act of 1968 is an important question of federal law

which has not been, but which should be settled by this

Court. Resolution of this question would tend to clarify

for prosecutors and lower courts a major distinction bet-

ween the Gun Control Act and Title VII of the Omnibus

Safe Streets and Crime Control Act. The definition of

“firearm” in the latter plainly includes hunting weapons.

Section 1202(c)(3) declares that “firearm” in that title “shall

include any handgun, rifle or shotgun.” The overlap bet-

ween the two gun control laws has been legally

troublesome. See Batchelder v. United States, 442 U.S. 114

(1979). Differences between the two laws can and should

be drawn clearly.

'" The last clause of § 921(a)(4) has three branches:

The term “destructive device” shall not include . . . any

other device which the Secretary of the Treasury finds is

not likely to be used as a weapon, is an antique, or is a

rifle which the owner intends to use solely for sporting,

recreational or cultural purposes.

It is grammatically proper and functionally reasonable to have an ad-

ministrative ruling on the first branch. A concept as open ended as

a device “not likely to be used as a weapon” can be implemented well

in an administrative proceeding. A wholly different situation exists

in the second and third branches. The statute is amply clear for judicial

application. With respect to antiques, there is a fully detailed defini-

tion in § 921(a)(16). The branch relevant to this case, turning upon

the intent of the purchaser of a hunting rifle, is particularly suited

for judicial fact-finding. It is incongruous to contemplate numerous

administrative proceedings leading to rulings by the Treasury Secretary

on the intentions of particular purchasers of hunting rifles. No such

intent should be imputed to Congress. The government's argument

that the third branch requires more than judicial fact-finding is a

misreading of the Act.

21

None of the Gun Control Act cases previously considered

by this Court involved hunting weapons. The weapon in

Batchelder was a .38 caliber pistol.” The gun in Barrett

v. United States, 423 U.S. 212 (1976), was a .32 caliber

revolver. At issue in Dickerson v. New Banner Institute,

Inc., 103 S. Ct. 986 (1983) was the license of a gun dealer,

who presumably handled all kinds of weapons. The only

case under the Gun Control Act before this Court that in-

volved long guns was Huddleston v. United States, 415 U.S.

814 (1974). There were three weapons: a 30-30 caliber ri-

fle, a .22 caliber rifle, and a 7.62 caliber rifle. No point

was made whether all of any of these were hunting

weapons. The status of hunting weapons under the Gun

Control Act is an open question, of obvious importance,

which should be determined by this Court.

CONCLUSION

The petition for writ of certiorari should be granted.

Respectfully submitted,

Jacos KossMAN

1325 Spruce Street

Philadelphia, Pa. 19107

Counsel for Petitioner

January 1984

"* This appears in the court of appeals opinion, 581 F.2d 626, 628

(7th Cir. 1978).

APPENDIX

A-l

APPENDIX A

OPINION BELOW

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

+

Cal. No. 187—August Term, 1983

(Argued September 20, 1983

Decided November 28, 1983)

Docket No. 83-1184

++—

UNITED STATES OF AMERICA,

Appellee,

—V—

MICHAEL ANGELO MELDISH,

Defendant-Appellant.

Before:

OAKES, VAN GRAAFEILAND and WINTER,

Circuit Judges

++-—

Appeal from a judgment of the United States District

Court for the Southern District of New York (Ward, J.)

convicting Michael Meldish of illegally receiving firearms

A-2

and knowingly making a false statement during a fire-

arms transaction.

Affirmed.

VAN GRAAFEILAND, Circuit Judge:

Following a jury trial before Judge Ward in the United

States District Court for the Southern District of New

York, appellant was convicted of violating 18 U.S.C.

§§ 922(h) and 922(a)(6). Section 922(h)(1) makes it unlaw-

ful for one who has been convicted of a crime punishable

by a term of imprisonment exceeding one year to receive a

firearm that has moved in interstate commerce. Section

922(a)(6) provides in pertinent part that it is unlawful for

the purchaser of a firearm from a licensed dealer kno-

wingly to make a false written statement intended or

likely to deceive the dealer with respect to any fact

material to the lawfulness of the sale. Finding no error in

A-3

the proceedings below and concluding that the jury’s

verdict was supported by the evidence, we affirm.

The facts are largely undisputed. On July 12, 1978,

appellant was convicted in the United States District

Court for the Eastern District of Virginia of violating 18

U.S.C. § 542 by bringing a lady’s wristwatch worth

$9,000 into the United States by means of a false customs

declaration. This was a felony punishable by imprison-

ment for up to two years or a fine up to $5,000, or both.

Appellant received the maximum fine and a two-year

suspended sentence with probation.

On October 8, 1982, appellant purchased two shotguns

and two rifles from a dealer in Yonkers, New York. In

order to effectuate that purchase, appellant was required

to complete two copies of Treasury Form 4473, entitled

“Firearms Transaction Record.” See 27 C.F.R. § 178.124.

An “important” notice on the Form advised appellant

that the information and certification on the Form were

designed so that the dealer could determine if he lawfully

could sell appellant the guns. Appellant also was in-

formed that an untruthful answer in his certification

might subject him to criminal prosecution. Despite the

foregoing, appellant certified that he never had been

convicted of a crime punishable by imprisonment for a

term exceeding one year.

The Unlawful Receiving Count

Although both the Gun Control Act of 1968, 18 U.S.C.

§§ 921-928, and Title VII of the Omnibus Crime Control

and Safe Streets Act of 1968, 18 U.S.C. App. § 1201-

1203, prohibit convicted felons from receiving firearms,

the two statutes do not define felonies in identical terms.

United States v. Batchelder, 442 U.S. 114, 119 0.5 (1979).

A-4

The Gun Control Act excludes from the category of

crimes punishable by imprisonment for a term exceeding

one year under section 922(h)(1) “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

Secretary may by regulation designate... .” 18 U.S.C.

§ 921(a)(20). Congress intended by this provision to ex-

clude “offenses relating to antitrust violations and similar

business offenses.” Conference Rep. No. 1956, 90th

Cong., 2d Sess. 29, reprinted in 1968 U.S. Code Cong. &

Ad. News 4426, 4428. The Omnibus Crime Control and

Safe Streets Act, on the other hand, defines a felony as

“any offense punishable by imprisonment for a term

exceeding one year... .” 18 U.S.C. App. § 1202(c)(2).

The intendment of this Act was to permit a person to

possess a gun until the commission of his first felony.

Statement of Senator Long, as quoted in United States v.

Bass, 404 U.S. 336, 355 (1971)(Blackmun, J., dissenting).

Although the coverage of section 1202 is broader than

that of section 922(h)(1), the Government chose to indict

appellant under the latter section.

On the basis of stipulated facts, Judge Ward charged

the jury that appellant’s prior conviction was for a crime

punishable by a term exceeding one year. Appellant con-

tends that this was error, arguing that his falsification of

the customs declaration for the $9,000 watch was an

offense pertaining to an “unfair trade practice” within

the meaning of section 922(a)(20). We disagree.

Although it is almost impossible to formulate an all-in-

clusive definition of “unfair trade practice,” see FTC v.

Sperry & Hutchinson Co., 405 U.S. 233, 240 (1972),

implicit in the term itself is the requirement that the

practice adversely affect either competitors or consumers,

A-5

see id. at 241-44. Among the practices which may cause

such an adverse effect are the suppression of competition,

Shakespeare Co. v. FTC, 50 F.2d 758, 759-60 (6th Cir.

1931), price discrimination, Oliver Bros., Inc. v. FTC,

102 F.2d 763, 767 (4th Cir. 1939), deceptive advertising or

labeling, Armstrong Paint & Varnish Works v. Nu-

Enamel Corp., 305 U.S. 315, 335-36 (1938), and the

exploitations of child purchasers, FTC v. R.F. Keppel &

Bro., Inc., 291 U.S. 304, 313 (1934).

Section 542 does not concern itself with matters such as

these. To secure a conviction under section 542, the

Government need prove only “(1) an attempt to introduce

imported merchandise into the United States (2) ‘by

means of’ any false statement or practice (3) without

reasonable cause to believe the truth of such statement or

practice.” United States v. Rose, 570 F.2d 1358, 1363 (9th

Cir. 1978). A violation of section 542 in no way depends

upon whether it has an effect on competition or con-

sumers.

Appellant’s reliance upon legislation such as the Anti-

dumping Act, current version at 19 U.S.C. §§ 1673-

1677g, is misplaced. The Antidumping Act is designed to

prevent foreign merchandise from being sold in the

United States at less than its fair value so that it mate-

rially injures or threatens material injury to a domestic

industry. 19 U.S.C. § 1673. Section 542 concerns itself

only with whether a false statement was made to effect or

attempt to effect the entry of the goods in question.

United States v. Teraoka, 669 F.2d 577, 579 (9th Cir.

1982). There is nothing in the record of the instant case to

justify calling appellant’s crime an unfair trade practice.

We find no merit in appellant’s contention that section

921(a)(20)’s exclusion of “unfair trade practices” from

other nonviolent offenses punishable by imprisonment

A-6

for more than one year is an unconstitutionally irrational

classification. Because the receiving and possessing of

firearms is not a basic constitutional right, the classifica-

tion must be upheld if it has any rational support. See

United States v. Giles, 640 F.2d 621, 625-26 (Sth Cir.

1981).

Unfair trade pratices found their origin in the common

law of torts, and, even today, they usually are treated as

civil offenses, see, e.g., 15 U.S.C. § 45. Although some

legislative bodies have seen fit to impose criminal sanc-

tions for certain unfair trade practices, see, e.g., 15

U.S.C. §§ 1 and 2, there is nothing irrational or illogical

in Congress’s belief that trade offenders would be less

likely to misuse a gun than would other criminals such as

forgers, drug peddlers, or receivers of stolen property. We

must give deference to a “legislative determination that,

in essence, predicts a potential for future criminal behav-

ior.” Lewis v. United States, 445 U.S. 55, 67 n.9 (1980).

We likewise find no merit in appellant’s contention

that, in enacting 18 U.S.C. § 921(a), Congress intended

to regulate only “firearms”, see § 921(a)(3), that con-

formed to the definition of “destructive devices”, see

§ 921(a)(4), and that therefore he is entitled to claim the

benefit of the sporting use exception contained in section

921(a)(4). Section 921(a)(3) offers several definitions of

“firearm” and among those is “any destructive device.”

However, section 921(a)(3)’s definitions are in the alterna-

tive, and the first definition is “any weapon . . . which

will. . . expel a projectile by the action of an explosive.”

The guns which appellant purchased fall squarely within

this definition. In any event, it is the Secretary of the

Treasury, not the gun purchaser, who determines in ac-

cordance with section 921(a)(4) whether a device is ex-

cluded from the definition of a destructive device. See 27

C.F.R. § 178.27.

A-7

The False Statement Conviction

Section 922(d)(1) of Title 18 prohibits a dealer from

selling a firearm to one who he knows or has reasonable

cause to believe has been convicted of a crime punishable

by imprisonment for a term exceeding one year. Regula-

tions of the Bureau of Alcohol, Tobacco and Firearms

require that the dealer obtain and retain a Form 4473

containing the purchaser’s certification that he is not

prohibited by the Gun Control Act of 1968 or Title VII of

the Omnibus Crime Control and Safe Streets Act from

receiving a firearm in interstate or foreign commerce. 27

C.F.R. § 178.124. It was to make these restrictions on

dealers effective that Congress enacted section 922(a)(6).

United States v. Allen, 556 F.2d 720, 722 (4th Cir. 1977).

The dealer cannot carry out his obligations without the

cooperation of the purchaser, and the “essence of a

§ 922(a)(6) violation,” therefore, is the purchaser’s failure

to tell the truth. United States v. Edwards, 568 F.2d 68,

70 (8th Cir. 1977); sée Cassity v. United States, 521 F.2d

1320, 1323 (6th Cir. 1975). We are satisfied that appel-

lant’s section 542 conviction precluded him under both

the Gun Control Act and the Omnibus Control and Safe

Streets Act from purchasing a firearm and that there was

ample evidence to support the jury’s finding that he

falsely denied in his Form 4473 certification the fact that

he had been convicted.

The judgment of conviction is affirmed.

A-9

APPENDIX B

JUDGMENT BELOW

United States Court of Appeals

FOR THE

SECOND CIRCUIT

At a stated Term of the United States Court of Appeals

for the Second Circuit, held at the United States Court-

house in the City of New York, on the twenty-eighth day

of November one thousand nine hundred and eighty-

three.

Present:

HON: JAMES L. OAKES

HON: ELLSWORTH A. VAN GRAAFEILAND

HON: RALPH K. WINTER

Circuit Judges, FILED: NOV 28, 1983

UNITED STATES OF AMERICA,

Appellee,

Vv.

MICHAEL ANGELO MELDISH,

Defendant-Appellant.

Appeal from the United States District Court for the

Southern District of New York.

This cause came on to be heard on the transcript of

record from the United States District Court for the

Southern District of New York, and was argued by

counsel.

ON CONSIDERATION WHEREOPF, it is now hereby

ordered, adjudged, and decreed that the judgment of

said District Court be and it hereby is affirmed in accor-

dance with the opinion of this court.

A. Daniel Fusaro, Clerk

by Arthur Heller,

Deputy Clerk

83-1184

A-11

APPENDIX C

BENCH OPINION OF DISTRICT COURT

United States Bistrict Court

SOUTHERN District oF NEw YorK

UNITED STATES OF AMERICA,

We

MICHAEL ANGELO MELDISH.

Defendant.

The defendant Michael Angelo Meldish, has moved to

set aside his conviction and for a new trial. Meldish argues

that 18 USC, Sections 922(a) (6) and 922(h) (1) as applied

to him are unconstitutional.

He also seeks a new trial on the grounds that the govern-

ment’s summation was improper and that it otherwise

failed to adhere to the requirements of Brady v. Maryland,

373 US 83 (1963).

Further, he argues that this Court erred in refusing to

admit into evidence certain evidence, specifically hunting

licenses.

In his reply memorandum, Meldish argues that his prior

conviction, under Title 18, United States Code, Section

542, for an unfair trade practice,” which may not serve

as a predicate offense for his instant conviction under the

Gun Control Act of 1968.

A-12

Specifically, Meldish argues that on the basis of two in-

formal advisory opinions by the Bureau of Alcohol, Tobac-

co and Firearms, no conviction under Section 542,

regardless of the facts relating to the particular offense,

can serve as a disabling felony under Title 18, United States

Code, Sections 922(a) (6) and 922(h) (1).

For the reasons hereinafter stated, defendant’s motion

is in all respects denied.

Meldish first contends that the Gun Control Act of 1968

as applied to him is unconstitutional. Specifically, he claims

that his convictions for violating 18 USC Sections 922(a)

(6) and 922(h) (1) must be set aside since these sections

create an irrational classification between “nonviolent

trade regulation offenses and other similarly situated non-

violent offenses.” (Defendant’s memorandum of law at p.

4).

Meldish also claims that this Court improperly exclud-

ed evidence that he intended to use the firearms in this

case for “sporting” purposes, because the Court incorrect-

ly construed the relevant statute.

This Court rejects defendant’s claims.

Defendant’s contention that Section 921 (20) creates an

irrational classification between non-violent trade regu-

lation offenses and other similarly situated non-violent

offenses, simply ignores the well-settled law to the con-

trary. United States v. Giles 640 F. 2d 621 (5th Cir.

1981); United States v. Weatherford, 471 F. 2d 47, 52 &

n. 6 (7th Cir. 1972), cert. denied 411 U.S. 972 (1973);

Cody v. United States, 460 F. 2d 34, 36n. 3 (8th Cir.),

cert. denied 409 US 1010 (1972).

Meldish argues that “the governmental interest behind

the Gun Control Act of 1968 was to combat crime by

keeping guns out of the hands of dangerous individuals.”

This is simply incorrect.

A-13

In Huddleston v. United States, 415 US 814 (1974), the

Supreme Court noted the purpose of Congress in enact-

ing Section 922(a) (6).

The Supreme Court indicated that Congress “was con-

cerned with the widespread traffic in firearms and with

their general availability to those whose possession

thereof was contrary to the public interest.”

According to the Supreme Court, Congress determined

that the ease with which firearms could be obtained con-

tributed significantly to the prevalence of violent crime

in the United States.

The Court noted that the principal purpose of the

Federal Gun Control legislation was to curb crime by

keeping “firearms out of the hands of those not legally

entitled to possess them because of age, criminal back-

ground, or incompetency.”

See Senate report No. 1501, 90th Congress, Second

Section, 22, 1968.

In order to promote the aforementioned goal, Con-

gress determined to prohibit the receipt of firearms by

those who in the past had been convicted of serious

crimes, whether violent or nonviolent in nature, to wit;

felonies. This prohibition was clearly rational.

Congress also rationally decided that “offenses pertain-

ing to antitrust violations, unfair trade practices, re-

straints on trade, or other similar offenses relating to the

regulation of business practices, as the Secretary [of the

Treasury] may by regulation designate,” did not contrib-

ute significantly to the prevalence of lawlessness and

violent crime in the United States, a decision which can-

not reasonably be disputed.

A-14

The Court has reviewed the legislative history of the

statute and the cases which have interpreted the statute

and has found nothing to support the arguments ad-

vanced by the defendant.

Accordingly, the Court rejects defendant’s first

argument.

Meldish seeks a judgment of acquittal on the grounds

that the two shotguns and two rifles, which are the sub-

ject of his conviction, on Counts 2 and 4, are not covered

by the Gun Control Act of 1968. Specifically, he asserts

that this Court abused its discretion by excluding evi-

dence that he intended to use his guns for noncriminal

purposes, to wit: for hunting.

The Court concludes that this claim is based on an in-

correct reading of the plain language of the statute.

Meldish was charged in Counts 2 and 4 with falsely

acquiring and thereafter possessing firearms, to wit: two

rifles and two shotguns.

The term “firearm” is clearly defined in Section 921 (a)

(3) (A), as “Any weapon (including a starter gun) which

will or is designed to or may readily be converted to expel

a projectile by the action of an explosive. ..or (D) any

destructive device.”

Meldish’ claim that a rifle or a shotgun is anything but

a firearm as defined in Section 921(a) (3) (A), is simply

incorrect.

This Court notes that the defendant was neither

charged nor convicted of acquiring or possessing “any

destructive device.” His construction of that term in his

motion and his attempt to relate that term back to Sec-

tion 921(a) (3) (A) must be rejected.

A-15

With regard to whether the shotguns and rifles in-

volved in this case are covered by the term “destructive

device.” This Court’s research appears to coincide in

general with the results of both counsels’ research, name-

ly, neither the Court, the government, nor defendant's

counsel have found any regulation in which the Secretary

of the Treasury has determined or indicated in any way

that weapons of the type involved in this case are to be

excluded from the Gun Control Act’s coverage of

“destructive devices.”

Accordingly, the Court did not commit error in refus-

ing to admit evidence regarding any purported reason for

the defendant’s having purchased the weapons in ques-

tion in this case. Such evidence was clearly irrelevant,

since the shotguns and rifles, regardless of their intended

function, are clearly covered by the Gun Control Act

of 1968.

This Court was well within its discretion in precluding

collateral evidence of Meldish’ purchase of the hunting

license.

Additionally, the Court found this evidence to be con-

fusing and misleading. Thus, even if relevant, the evi-

dence was properly excluded under Rule 403 of the

Federal Rules of Evidence.

In his reply memorandum of law and in his supple-

mental reply memorandum of law, Meldish argues that

his conviction in the Eastern District of Virginia for

violating 18 USC Section 542, may not serve as a predi-

cate offense for the instant prosecution under the Gun

Control Act of 1968.

The Court has reviewed the Virginia indictment and

finds that the indictment charges, in pertinent part, that

Meldish “wilfully and knowingly” introduced “into the

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commerce of the United States imported merchandise,

that is a Vacheron Constantine ladies bracelet watch...

by means of a false Customs declaration and a false state-

ment which falsely and fraudulently certified and stated

that Michael Angelo Meldish had declared all articles ac-

quired abroad, whereas, in truth and in fact, as he then

well knew, Michael Angelo Meldish did have on his per-

son the above described. .watch of an approximate

domestic value of $9000, w sich he had obtained abroad

and which he had not declared.”

The crime charged, is a violation of Title 18 United

States Code, Section 542 and carries with it a penalty of

imprisonment for a maximum term of two years.

This Court concludes that Meldish’s prior conviction

under Title 18 United States Code, Section 542, is a pre-

dicate offense for the instant conviction.

The Court concludes that the conviction was for

neither an unfair trade practice nor an offense relating to

the regulation of business practices which would have

removed the conviction from being a predicate “crime

punishable by imprisonment for a term exceeding one

year.

Meldish relies heavily on two advisory opinions fur-

nished in another case by the Bureau of Alcohol, Tobacco

and Firearms. Although a literal reading of these advi-

sory opinions might support the argument presented by

Meldish, the Court views these opinions as relating di-

rectly to the fact pattern of the case with which they were

concerned.

The Court notes that these advisory opinions empha-

size the case with which they are concerned involved

“antidumping.”

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The Court has determined that Meldish’ conviction in

the Eastern District of Virginia did not involve “anti-

dumping” and that the advisory opinions are inapposite.

Accordingly, the Court concludes that defendant's

prior conviction under 18 USC Section 542, is a predicate

offense for his instant conviction under the Gun Control

Act of 1968.

Defendant’s motion is, in all respects, denied.

It is so ordered.

Judge Robert Ward

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APPENDIX D

RELEVANT SECTIONS

THE GUN CONTROL ACT OF 1968

CHAPTER 27, CUSTOMS U.S. CRIMINAL CODE

The Gun Control Act of 1968, 18 U.S.C. §§ 921-928.

18 U.S.C. § 921. Definitions

(a) As used in this chapter —

(3) The term “firearm” means (A) any weapon (in-

cluding a starter gun) which will or is designed to or may

readily be converted to expel a projectile by the action of

an explosive; (B) the frame or receiver of any such wea-

pon; (C) any firearm muffler or firearm silencer; or

(D) any destructive device. Such term does not include

an antique firearm.

(4) The term “destructive device” means —

(A) any explosive, incendiary, or poison gas—

(i) bomb,

(ii) grenade,

(iii) rocket having a propellant charge of more

than four ounces,

(iv) missile having an explosive or incendiary

charge of more than one-quarter ounce,

(v) mine, or

(vi) device similar to any of the devices describ-

ed in the preceding clauses;

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(B) any type of weapon (other than a shotgun or a

shotgun shell which the Secretary finds is generally

recognized as particularly suitable for sporting pur-

poses) by whatever name known which will, or which

may be readily converted to, expel a projectile by the

action of an explosive or other propellant, and which

has any barrel with a bore of more than one-half inch

in diameter, and

(C) any combination of parts either designed or in-

tended for use on converting any device into any

destructive device described in subparagraph (A) or

(B) and from which a destructive device may be read-

ily assembled.

The term “destructive device” shall not include any

device which is neither designed nor redesigned for use as

a weapon; any device, although originally designed for

use as a weapon, which is redesigned for use as a signal-

ing, pyrotechnic, line throwing, safety, or similar device;

surplus ordnance sold, loaned, or given by the Secretary

of the Army pursuant to the provisions of section 4684(2),

4685, 4686 or title 10; or any other device which the

Secretary of the Treasury finds is not likely to be used as

a weapon, is an antique, or is a rifle which the owner

intends to use solely for sporting, recreational or cultural

purposes.

(5) The term “shotgun” means a weapon designed or

redesigned, made or remade, and intended to be fired

from the shoulder and designed or redesigned and made

or remade to use the energy of the explosive in a fixed

shotgun shell to fire through a smooth bore either a num-

ber of ball shot or a single projectile for each single pull

of the trigger.

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(7) The term “rifle” means a weapon designed or

redesigned, made or remade, and intended to be fired

from the shoulder and designed or redesigned and made

or remade to use the energy of the explosive in a fixed

metallic cartridge to fire only a single projectile through

a rifled bore for each single pull of the trigger.

(16) The term “antique firearm” means —

(A) any firearm (including any firearm with a

matchlock, flintlock, percussion cap, or similar type of

ignition system) manufactured in or before 1898; and

(B) any replica of any firearm described in sub-

paragraph (A) if such replica—

(i) is not designed or redesigned for using rimfire

or conventional centerfire fixed ammunition, or

(ii) uses rimfire or conventional centerfire fixed

ammunition which is no longer manufactured in the

United States

(20) The term “crime punishable by imprisonment for

a term exceeding one year” shall not include (A) any

Federal or State offenses pertaining to antitrust viola-

tions, unfair trade practices, restraints of trade, or other

similar offenses relating to the regulation of business

practices as the Secretary 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 mis-

demeanor and punishable by a term of imprisonment of

two years or less.

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18 U.S. § 922. Unlawful acts

(a) It shall be unlawful —

(6) for any person in connection with the acquisition or

attempted acquisition of any firearm or ammunition

from a licensed importer, licensed manufacturer, li-

censed dealer, or licensed collector, knowingly to make

any false or fictitious oral or written statement or to fur-

nish or exhibit any false, fictitious, or misrepresented

identification, intended or likely to deceive such im-

porter, manufacturer, dealer, or collector with respect to

any fact material to the lawfulness of the sale or other

disposition of such firearm or ammunition under the pro-

visions of this chapter.

(h) 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 im-

prisonment 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. § 924. Penalties

(a) Whoever violates any provision of this chapter or

knowingly makes any false statement or representation

with respect to the information required by the provi-

sions 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 provi-

sions 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.

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APPENDIX D (Continued)

Chapter 27, Customs, U.S. Criminal Code. 18 U.S.C.

§§ 541-552

18 U.S.C. § 542. Entry of goods by means of false

statements

Whoever enters or introduces, or attempts to enter or

introduce, into the commerce of the United States any

imported merchandise by means of any fraudulent or

false invoice, declaration, affidavit, letter, paper, or by

means of any false statement, written or verbal, or by

means of any false or fraudulent practice or appliance, or

makes any false statement in any declaration without

reasonable cause to believe the truth of such statement,

or procures the making of any such false statement as to

any matter thereto without reasonable cause to believe

the truth of such statement, whether or nor the United

States shall or may be deprived of any lawful duties; or

Whoever is guilty of any willful act of omission

whereby the United States shall or may be deprived of

any lawful duties accruing upon merchandise embraced

or referred to in such invoice, declaration, affidavit,

letter, paper, or statement, or affected by such act or

omission —

Shall be fined for each offense not more than $5,000 or

imprisoned not more than two years, or both