United States v. Edward Thomas Malone

(dissenting):

I respectfully dissent.

The question before the Court is whether the distinction should be perpetuated between the showing of interstate commerce necessary under 18 U.S.C. App. § 1202(a) for a prosecution for receipt of a firearm by a felon, on the one hand, and a prosecution for possession of a firearm by a felon, on the other. Section 1202(a) was enacted as part of an amendment to the Omnibus Crime Control and Safe Streets Act of 1968 and provides in relevant part:

The critical phrase is “who receives, possesses, or transports in commerce or affecting commerce,” a phrase which has already undergone the scrutiny of the Supreme Court in United States v. Bass, 404 U.S. 336 , 92 S.Ct. 515 , 30 L.Ed.2d 488 (1971). The question in Bass was whether the verbs “receives” and “possesses” are modified by the phrase “in commerce or affecting commerce”. The Supreme Court answered the question affirmatively, holding that “the phrase ‘in commerce or affecting commerce’ is part of all three offenses * * 404 U.S. at 347 , 92 S.Ct. at 522 . In resolving the question before it, the Court discussed several other issues not necessary to its decision. Those dicta have created…

Appellant was convicted on two counts of possession of a firearm by a felon. [18 U.S.C. App. § 1202(a)(1)]. On appeal he contends that the government failed to prove that there was sufficient nexus between his possession and interstate com *251 merce. We agree and reverse the convictions.

The indictment charged that appellant “knowingly possessed and received” two firearms on or about November 22, 1974. The parties stipulated that the weapons had moved in interstate commerce some six and 18 months respectively before this date. No further evidence was adduced to prove a connection between appellant’s possession of the firearm and interstate commerce.

The court found him guilty on two counts of possession, not of receipt of the firearms. While the stipulation might have been sufficient to meet the government’s burden in a receiving case, it is not sufficient to establish the nexus with interstate commerce required in a possession case. United States v. Bass, 404 U.S. 336 , 92 S.Ct. 515 , 30 L.Ed.2d 488 (1971); United States v. Lathan, 531 F.2d 955 (9th Cir. 1976); United States v. Cassity, 509 F.2d 682 (9th Cir. 1974).

While we recognize that the distinction between the…

538 F.2d 250 UNITED STATES of America, Plaintiff-Appellee, v. Edward Thomas MALONE, Defendant-Appellant. No. 75-2636. United States Court of Appeals, Ninth Circuit. June 17, 1976. Rehearing Denied Aug. 23, 1976. Danilo J. Becerra, Federal Public Defender (argued), Los Angeles, Cal., for defendant-appellant. Brendan Lynch, Asst. U.S. Atty. (argued), Los Angeles, Cal., for plaintiff-appellee. OPINION Before MERRILL and WRIGHT, Circuit Judges, and RENFREW, * District Judge. PER CURIAM: 1 Appellant was convicted on two counts of possession of a firearm by a felon. (18 U.S.C. App. § 1202(a)(1)). On appeal he contends that the government failed to prove that there was sufficient nexus between his possession and interstate commerce. We agree and reverse the convictions. 2 The indictment charged that appellant "knowingly possessed and received" two firearms on or about November 22, 1974. The parties stipulated that the weapons had moved in interstate commerce some six and 18 months respectively before this date. No further evidence was adduced to prove a connection between appellant's possession of the firearm and interstate commerce. 3 The court found him guilty on two counts of…