United States District Court, Southern District of Illinois, S.D
January 10, 1973
UNITED STATES OF AMERICA, PLAINTIFF,
TERRY OLIVER WALKER, DEFENDANT.
The opinion of the court was delivered by: Poos, District Judge.
OPINION OF THE COURT
This cause comes before the Court on the Motion of the
Defendant, Terry Oliver Walker, to Dismiss the Indictment. The
indictment charged that on or about September 7, 1971 the
Defendant, being a convicted felon, knowingly received in
commerce and affecting commerce, a firearm in violation of
Title 18, App., U.S.C. § 1202(a)(1).
Section 1202(a)(1) states in pertinent part:
"Any person who has been convicted by a court of
the United States or of a State or any political
subdivision thereof, of a felony and who
receives, possesses, or transports in commerce or
affecting commerce, after the date
of enactment of this Act, any firearm shall be
fined not more than $10,000 or imprisoned for not
more than two years, or both."
The following facts have been stipulated by the parties:
(1) That the Defendant is a convicted felon;
(2) That the firearm in question was shipped from
Firearms Import and Export Corporation in
Miami, Florida, on November 1, 1970, to
Lawson Arms in Godfrey, Illinois;
(3) That on March 30, 1971, Lawson Arms of
Godfrey Illinois, sold the firearm in
question to Traders Pawn Shop of Alton,
(4) That on April 3, 1971, Traders Pawn Shop in
Alton sold the firearm in question to Charles
Dublo of Bethalto, Illinois;
(5) That Charles Dublo discovered the firearm
missing sometime in July 1971, but did not
report this fact to the police;
(6) That the Defendant, on September 7, 1971, was
found with the firearm in question.
Prior to the Supreme Court decision in United States v.
Bass, 404 U.S. 336
, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971), the
Government did not allege in the indictment, nor was an
attempt made to show that the firearms involved had been
received, possessed, or transported in commerce or affecting
commerce. The Court in Bass, however, held that the Government
must show the requisite nexus with interstate commerce with
respect to receipt, possession and transportation of the
firearm. Thus, the issue to be determined herein is whether or
not the facts established the requisite nexus with interstate
commerce with respect to the receipt of the firearm by the
The Defendant alleges that the facts do not show that the
firearm in question was received in commerce or affected
commerce. Defendant contends that the receipt of the firearm
is too far removed in time from the original movement of the
firearm in commerce.
The Government's position, on the other hand, is that once
proof is established that the firearm in question was, at some
time, shipped in interstate commerce, there is a sufficient
showing that the receipt or possession of the firearm by a
convicted felon affects commerce within the meaning of the
The Government argues that it was the intent of Congress, in
enacting Section 1202(a) to wrap the firearm in the protective
veil of interstate commerce once it is shipped in commerce.
Such intent, the Government argues, is stated in Section 1201
of Title 18, App. U.S.C. which provides in pertinent part as
follows: "The Congress hereby finds and declares that the
receipt, possession, or transportation of a firearm by
felons . . . constitutes (1) a burden on commerce or threat
affecting the free flow of commerce . . .; (4) a threat to the
continued and effective operation of the Government of the
United States and of the Government of each State guaranteed by
Article IV of the Constitution." The Government also quotes
Senator Long as further evidence of this congressional intent
"You cannot do business in an area, and you
certainly cannot do as much of it and do it well
as you would like, if, in order to do business,
you have to go through a street where there are
burglars, murderers, and arsonists armed to the
teeth against innocent citizens. So the threat
certainly affects the free flow of commerce." 114
Congressional Record 13869.
This is indeed an eloquent argument by the Government and an
excellent statement by Senator Long, nonetheless it evades the
particular issue involved in this case. The Supreme Court in
Bass quoted Senator Long, but also pointed out the ambiguity
in his statement. The Court stated:
"Such evils, we note, would be most thoroughly
mitigated by forbidding every possession of any
specified classes of especially risky people,
regardless of whether the gun was possessed,
received, or transported `in commerce or
affecting commerce.' In addition specific remarks
of the Senator can be read to state that the
amendment reaches the mere possession of guns
without any showing of an interstate commerce
nexus. But Senator Long never specifically says
that no connection with commerce need be shown in
the individual case. And nothing in his
statements explains why, if an interstate
commerce nexus is irrelevant in individual cases,
the phrase `in commerce or affecting commerce' is
in the statute at all. But even if Senator Long's
remarks were crystal clear to us, they were
apparently not crystal clear to his Congressional
colleagues. Meager as the discussion of Title VII
was, one of the few Congressmen who discussed the
amendment summarized Title VII as `mak[ing] it a
Federal crime to take, possess, or receive a
firearm across State lines . . .' 114 Cong.Rec.
16298 (statement of Representative Pollock)."
The Court's reasoning adequately reveals the ambiguity in
the statute as to whether or not "commerce or affecting
commerce" must be alleged and proved by the Government. The
Court has laid that ambiguity to rest in the Bass decision in
holding that a requisite nexus with interstate commerce must
be shown by the Government. The question here is what is that
As to the Government's contention that the findings of
Section 1201 should control the interpretation of Section
1202(a), the Court in Bass indicates otherwise. The Court
stated in footnote 14:
"For the same, and additional, reasons, § 1201,
which contains the congressional `findings'
applicable to § 1202(a) is not decisive support for
the Government . . . But these findings of
`burdens' and `threats' simply state Congress' view
of the constitutional basis for its power to act;
the findings do not tell us how much of Congress'
perceived power was in fact invoked."
To determine exactly what quantum of proof is sufficient to
make a showing that certain prescribed conduct affects
commerce, the Government cites United States v. Darby,
312 U.S. 100
, 61 S.Ct. 451
, 85 L.Ed. 609 (1941); Heart of Atlanta
Motel, Inc. v. United States, 379 U.S. 241
, 85 S.Ct. 348, 13
L.Ed.2d 258 (1964), and Perez v. United States, 402 U.S. 146
91 S.Ct. 1357, 28 L.Ed.2d 686 (1971). Without going into a
lengthy discussion of these cases, the Court finds that these
cases do not pertain to the issue before this Court.
The Darby case dealt with the production of goods for
interstate commerce which clearly had an effect on commerce
between the states. Also the Department of Labor had
established guidelines for determining when an industry is in
The Perez case concerned loan sharking activities, and the
Court carefully analyzed the basis of the statute in upholding
its constitutionality. The Court found that certain reports
had been submitted and relied upon by Congress, and that these
reports revealed that loan sharking was a part of organized
crime and transcended state boundaries.
Similarly, in the Atlanta case, the Court ruled that a motel
which primarily dealt with transients, many of whom would be
from out of state, was in commerce and thus could not
In the instant case, however, there is no showing of any
behavior or conduct by the Defendant which affects commerce as
in the Atlanta case. There is no showing of a manufacturer of
goods for interstate commerce as in the Darby case, and there
is no connection with organized crime in the activities of
this Defendant as in the Perez case.
The statute on its face demonstrates the frailty of the
Government's argument that once a firearm has moved through
interstate commerce, it is forever
labeled "interstate." Section 1202(a) simply stated provides
in pertinent part as follows:
"Any person who has been convicted . . . of a
felony . . . and who receives, possesses, or
transports in commerce or affecting
commerce . . ."
The statute specifies "any person who receives, possesses, or
transports in commerce or affecting commerce." The emphasis of
the Government is that it is the firearm that meets the
requirement of interstate commerce. This is clearly contrary
to the language of the statute which requires action on the
part of the person affecting commerce and committing the
crime. There is no showing by the Government that this
Defendant received the firearm in interstate commerce except
for the fact that this firearm was shipped from Miami, Florida
on November 1, 1970. Two additional intrastate transfers of
this firearm occurred before the Defendant was apprehended
with the firearm. A duration of eleven months separated the
first and only movement of this firearm in interstate commerce
from the time the Defendant was apprehended.
Since the firearm had been out of interstate commerce for
approximately eleven months, it would strain the fabric of law
beyond reason to say that the receipt of this firearm affected
There has been no showing by the Government that this
firearm affects interstate commerce. This leaves the Court
with no other alternative but to presume that since the
Defendant is a felon and since he was apprehended with the
firearm, interstate commerce was affected. This reasoning
reverts back to the position of the Government in Tot v.
United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519
(1943); i.e., that possession of a firearm is presumptive
evidence that such firearm was shipped or transported or
received in interstate commerce. This type of reasoning was
condemned in Tot. The Court held that there was no rational
connection between the facts proved and the ultimate fact
presumed. Likewise, this Court is unable to reasonably and
logically adhere to such a presumption.
Accordingly, this Court finds that the Defendant did not
receive this firearm in interstate commerce, nor did the
Defendant receive the firearm in any manner which could have
affected interstate commerce.
Inasmuch as the Government has failed to show the requisite
nexus with interstate commerce by this Defendant, the
indictment must be dismissed.
It is so ordered.
© 1992-2003 VersusLaw Inc.