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March 3, 1970

Samuel Joseph MELVILLE, John David Hughey, III, Jane Lauren Alpert, and Patricia Elizabeth Swinton, Defendants

Pollack, District Judge.

The opinion of the court was delivered by: POLLACK

(Motions to Dismiss)

POLLACK, District Judge.

 The defendants are charged herein with conspiracy and substantive offenses under the laws against injury of federal property, use of explosive bombs, sabotage and destruction of national defense utilities, possession of illegally made explosive bombs.

 The defendants are here attacking those counts of the indictment stemming from the recently enacted Gun Control Act of 1968 which amended Title IV of the Omnibus Crime Control and Safe Streets Act. P.L. 90-351, Title IV, § 902, 82 Stat. 226, as amended, P.L. 90-618, 82 Stat. 1213, 18 U.S.C.A. § 921 et seq. (Supp. 1970).

 1. Interstate Commerce

 The counts of the indictment (3, 5, 9, 10, 11) which charge use of explosive bombs by some or all of the defendants to commit federal felonies, fail to allege that the bombs were unlawfully transported into or received in New York by such defendants in the course of interstate or foreign commerce. These defendants claim that the use, without more, of an explosive bomb, even if it is used in the commission of a federal crime, is not sufficient to constitute a crime under the statute, Title 18 § 924(c)(1) and (c)(2).

 It is crystal clear however, from the legislative history of the section that Congress intended to make the use of a destructive bomb to commit a federal felony a crime irrespective of any nexus between the bomb and interstate or foreign commerce.

 The statute is embodied in a chapter of the Criminal Code entitled "Firearms". By definition in the chapter, the term firearm means any destructive device which in turn is defined as any explosive bomb. 18 U.S.C. § 921(a)(3) and (4).

 Section 924(c)(1) and (2) defines the crime charged in counts 3, 5, 9, 10 and 11. This section reads as follows:

(c) Whoever -
(1) uses a firearm to commit any felony which may be prosecuted in a court of the United States, or
(2) carries a firearm unlawfully during the commission of any felony which may be prosecuted in a court of the United States,
commits an offense punishable in the manner set out in the remainder of the section.

 On June 19, 1968, the President signed the Omnibus Crime Control and Safe Streets Act, Pub. L. 90-351, 82 Stat. 197 which was thereby enacted into law.

 Title IV sought to control the purchase and transfer of firearms. To that end, extensive licensing and registration provisions were enacted, along with provisions making it unlawful to sell firearms to certain classes of people. Title IV, § 902 et seq. became known as the Gun Control Act of 1968. 18 U.S.C.A. § 921 et seq. (Supp. 1970).

 Title VII of the Omnibus Act governs the unlawful possession or receipt of firearms by various classes of persons - convicted felons, mental incompetents, etc. 18 U.S.C.A. § 1201 et seq. (Supp. 1970).

 Titles IV and VII were enacted by Congress in part as a reaction to the assassinations of President Kennedy, Senator Robert Kennedy, Dr. Martin Luther King, Jr., and Medgar Evers.

 There is no doubt that among the evils sought to be combatted by Title IV, was commercial mail-order traffic in firearms. The state gun control laws were ineffective because of interstate, nonresident purchases of firearms for criminal purposes. The licensing and registration provisions were enacted to strengthen federal controls over interstate and foreign commerce in firearms in order to assist state regulation of firearm traffic within state borders. 1968 U.S. Code Cong. & Adm. News, at 2112-14, 2166 (S. Rep. No. 1097).

 As it was originally enacted in June, 1968, § 924 of the Gun Control Act contained only three subsections. Subsections (a) and (b) were identical to the present subsections (a) and (b). Subsection (c) was relettered (d) and modified somewhat.

 What is presently subsection (c) of § 924 was an amendment to the Gun Control Act, added on October 22, 1968 by Pub. L. 90-618, Title I, § 102, 82 Stat. 1223. Its provisions were not part of the original Act.

 The following is the history of § 924(c) in its passage through the Congress.

 On July 17, 1968 (approximately one month after the passage of the Gun Control Act) Mr. Casey introduced an amendment to H.R. 17735 (a bill introduced by Mr. Celler on June 10, 1968 basically to tighten some of the Gun Control legislation which was signed several days later by the President).

 This amendment enumerated certain serious felonies [robbery, assault, murder, rape, burglary, kidnapping or homicide (other than involuntary manslaughter)] and made it a federal crime to "use or carry any firearm which had been transported in interstate or foreign commerce" during the commission of one of the enumerated felonies. 114 Cong. Rec., 90th Cong., 2d Sess. 21765-67 (1968).

 Questions were raised about the burden to be placed on the federal courts and the prosecutors by this proposed amendment which would make a federal crime out of the use of a firearm during the commission of state felonies. See, 114 Cong. Rec. at 21770-71, 21778. Hon. Ramsey Clark, then Attorney General, was of the view that such a statute would create serious administrative problems for prosecutors and the courts, and that the federal interest in these essentially local crimes was not great. Moreover, state penalties for the commission of these crimes fulfilled the deterrent purposes of legislation, and the existence of an additional federal offense would not be likely to deter criminal conduct. 114 Cong. Rec. at 21778-9.

 Mr. Casey urged that Congress had the power to enact such a statute because of the effect on interstate commerce. 114 Cong. Rec. at 21781, 21793. Counsel for the Judiciary Committee likewise thought the commerce power provided a more than adequate jurisdictional basis for the proposed amendment. See, 114 Cong. Rec. at 21826-27.

 Mr. Wyman (114 Cong. Rec. at 21793) queried whether Mr. Casey had ever considered limiting the application of the statute to federal offenses so that "then it would not be necessary to say that the gun had to be transported in interstate commerce". Mr. Casey was of the view that there would be no need to prove any connection with interstate commerce to support federal jurisdiction under his proposal.

 Eventually, Mr. Wyman introduced a substitute to limit the bill to crimes "constituting a felony by Federal law". 114 Cong. Rec. at 21802. Mr. Minishall proposed the same thing, adding that "whoever uses a firearm in the commission of a federal felony" (emphasis added) would be liable for additional punishment. 114 Cong. Rec. at 21803.

 On July 19, 1968, Mr. Poff introduced a substitute amendment for the Casey amendment in the language which now appears as § 924(c)(1) and (2) of Title 18. 114 Cong. Rec. at 22231.

 The purpose of the Poff amendment was "to persuade the man who attempted to commit a federal felony to leave his gun at home". 114 Cong. Rec. at 22231.

 Mr. Poff explained the reason for omitting state felonies from the scope of his amendment (Cong. Rec. at 22231):

First, I do not want to put upon the Federal prosecutor the evidentiary burden of proving that the firearm moved in interstate commerce in order to establish Federal jurisdiction in each individual case. Every federal felony defined in the code already has its own jurisdictional base.

 The other reasons which he gave, were, the terrible burden that inclusion of state felonies would put upon the case load of the federal investigative and prosecutive apparatus; and the policy questions in converting state crimes into federal offenses on such a massive scale. 114 Cong. Rec. at 22231. See also remarks of Mr. Celler at 22235.

 Further debate on the relative merits of the Poff and Casey amendments centered on the amount of penalty and whether it should be mandatory. The House eventually passed the Poff amendment. 114 Cong. Rec. at 22248. It was enacted into law on October 22, 1968 as part of Pub. L. 90-618, 82 Stat. 1213.

 It seems incontrovertible that Congress intended that allegations and proof would not be necessary regarding interstate or foreign commerce to charge the offense ...

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