# Petition — Meldish v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1984
- **Citation:** 465 U.S. 1101

## Text

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
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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

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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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1118%3A1. Public record. Not legal advice.