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United States v. Garner

decided: July 27, 1972.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
MARVIN STEVEN GARNER, DEFENDANT-APPELLANT



Duffy and Castle, Senior Circuit Judges and Fairchild, Circuit Judge.

Author: Duffy

DUFFY, Senior Circuit Judge.

Defendant Garner was convicted at a bench trial on two counts of a three-count indictment for alleged violation of 18 U.S.C. §§ 922(a) (6) and 924(a). The Government claimed that in connection with the acquisition of firearms from a licensed dealer, defendant made false statements to two licensed dealers to the effect he was not prohibited from receiving such firearms yet knowing that previously thereto he had been convicted of a felony.

Witness Mildred Elston, an employee of a licensed gunstore [Sacks Brothers] in Indianapolis, Indiana, testified that on November 10, 1969, defendant purchased a. 38 caliber revolver from the store where she was employed as a clerk.*fn1 She testified that before defendant signed the request forms for federal, state and local gun control, she read aloud to him the warnings and restrictions contained therein, and that she witnessed the defendant sign the forms.*fn2 Defendant's alleged representations on this occasion (that he was not precluded by federal statute from purchasing a firearm) were the basis for Count I of the indictment.

Carl Stultz, a licensed dealer in firearms, testified that on January 24, 1970, defendant purchased a.25 caliber pistol after he (Stultz) had asked the defendant if there was any reason stemming from trouble with the police which might render him ineligible for purchasing the gun; further, that defendant replied in the negative and signed the registration form. This transaction was the basis of Count III of the indictment.

The record discloses that defendant had been convicted of a felony (robbery) on June 5, 1969, but was given a suspended sentence. This particular offense was punishable under Indiana law with a sentence of not less than one and not more then ten years.

Defendant Garner testified at trial that he was unaware of the statutory prohibition of convicted felons purchasing firearms, and that upon purchase he did not knowingly make false statements to the dealers. Furthermore, he asserted that neither of the dealers, Sacks Brothers and their agent Elston, or Stultz, informed him that convicted felons were precluded from purchasing firearms. This testimony failed to persuade the trial court as the finder of fact.

Defendant argues on appeal that the record does not support a finding of wilfully and knowingly making a false statement intending to deceive the dealers. Therefore, he asserts, the Court erred in its finding. In view of the evidence presented at trial, we believe the finder of fact was justified in finding beyond a reasonable doubt that Garner had been alerted to the statutory prohibition. See United States v. Menna, 451 F.2d 982 (9 Cir., 1971), cert. den. 405 U.S. 963, 92 S. Ct. 1170, 31 L. Ed. 2d 238.

The principal issue raised by defendant is whether, in a prosecution for a violation of 18 U.S.C. § 922(a) (6), the Government must allege and prove a transaction in interstate commerce. Defendant relies on United States v. Bass, 404 U.S. 336, 92 S. Ct. 515, 30 L. Ed. 2d 488 (1971).

However, the case at bar is easily distinguished from Bass, supra, in several respects. (1) Defendant herein was convicted under 18 U.S.C. § 922(a) (6) which, in contrast to the contested statute in Bass (18 U.S.C. App. § 1202(a) (1)), contains no reference or language relating to interstate commerce. (2) The Congressional intent included in § 901 of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 901 et seq. indicates that the purpose of the Act was to regulate the acquisition of firearms by felons without regard to the nexus of each acquisition with interstate commerce, and (3) Bass was concerned with Title VII of the Act whereas the offense herein charged involves Title IV of the Act. The legislative history of Title VII is scant and, as noted by the Supreme Court in Bass, the legislation was an afterthought in need of court interpretation. Such is not the case with Title IV for which the legislative history is extensive and explicit.

After reviewing the cases which have discussed the necessity of alleging and proving interstate commerce in an illegal firearms transaction under § 922(a) (6), we conclude that a nexus with interstate commerce need not be alleged and proven in each case. A recent Fifth Circuit case, United States v. Nelson, 458 F.2d 556 (5 Cir., 1972) makes this quite clear at page 559:

". . . In contrast to the situation in Bass, in the case before us we have a clear statement of Congress' intent and an unambiguous statute. Moreover, we believe that acquisition of firearms is more closely related to interstate commerce than mere possession. Therefore, while the Supreme Court in Bass impliedly expressed some reservations about Congress' power to regulate possession of firearms, we entertain no doubt that it has the power to regulate their acquisition without requiring proof of a nexus of interstate commerce in each individual case."

See also -- United States v. Menna, supra.

Furthermore, the First Circuit has considered a constitutional challenge to § 922(a) (6) in United States v. Crandall, 453 F.2d 1216 (1 Cir., 1972). The Court held in Crandall, supra, that notwithstanding the fact that Sec. 922(a) (6) did not contain the requirement that the transaction be in interstate commerce, ...


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