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United States v. O'Neill

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT


decided: September 21, 1972.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT,
v.
ARTHUR E. O'NEILL, DEFENDANT-APPELLEE

Mansfield and Timbers, Circuit Judges, and Gurfein, District Judge.*fn*

Author: Mansfield

MANSFIELD, Circuit Judge.

This appeal by the Government from the dismissal of an indictment charging a violation of the gun control provisions of the Omnibus Crime Control and Safe Streets Act of 1968 raises a straightforward legal question: Must the Government allege and prove a nexus with interstate commerce in order to charge a violation of §§ 922(a)(6) and 924(a)*fn1 of that Act? The district court concluded that it did. We disagree and reverse.

The one-count indictment, which alleges that on October 1, 1970, the defendant O'Neill, in acquiring a firearm from a licensed dealer, falsely certified that he was not under indictment for a crime punishable by imprisonment for a term of one year, tracks the language of § 922 (a)(6), in which no reference is made to commerce. Relying on United States v. Bass, 404 U.S. 336, 92 S. Ct. 515, 30 L. Ed. 2d 488 (1971), the district court concluded that the indictment was "insufficient on its face in that it doesn't allege this transaction in any way affecting [sic] Interstate Commerce or indeed, the dealer who sold it was engaged in Interstate Commerce, or that the certificate was required to be kept by a dealer in Interstate Commerce." United States v. O'Neill, No. 72-1380 (N.D.N.Y. March 20, 1972).

As we recently pointed out in United States v. Ruisi, 460 F.2d 153, 155 (2d Cir. 1972), the statute under consideration in Bass, 18 U.S.C. App. § 1202(a) (1970), contained the phrase "in commerce or affecting commerce" and the issue before the Court was whether those words modified other conduct described in that statute. In the absence of any significant legislative history the Court resolved the ambiguity in favor of the defendant. The statute in the present case, however, differs significantly from that before the Court in Bass. Section 922(a)(6) contains no reference to commerce. Furthermore, its legislative history reveals that Congress intended to regulate certain aspects of intrastate dealings in firearms because of their effect on interstate commerce. The legislative history repeatedly states that § 922 "makes it clear that a license is required for an intrastate business as well as an interstate business," S.Rep.No.1097, 90th Cong., 2d Sess. (1968), cited in U.S. Code Cong. & Admin.News, pp. 2112, 2202 (Vol. 2, 1968); H.R.Rep.No. 1577, 90th Cong., 2d Sess. (1968), cited in U.S. Code Cong. & Admin.News, pp. 4410, 4418 (Vol. 3, 1968).

That Congress has the power to regulate local or intrastate activities which might have a harmful effect upon interstate commerce is well settled. Heart of Atlanta Motel, Inc., v. United States, 379 U.S. 241, 258, 85 S. Ct. 348, 13 L. Ed. 2d 258 (1964) (civil rights); Katzenbach v. McClung, 379 U.S. 294, 85 S. Ct. 377, 13 L. Ed. 2d 290 (1964) (civil rights); Perez v. United States, 402 U.S. 146, 91 S. Ct. 1357, 28 L. Ed. 2d 686 (1971) (loan-sharking). The necessity for such broad federal regulation of firearms traffic arose from the failure of some states to enact effective gun control laws thereby enabling convicted felons to purchase lethal weapons which might then be used to commit crimes of violence in other parts of the United States. Accordingly we conclude that § 922(a)(6) represents a valid exercise of Congressional power and that the indictment suffices without having to plead or prove that the alleged conduct was connected with commerce.*fn2 United States v. Ruisi, supra ; United States v. Crandall, 453 F.2d 1216, 1217-1218 (1st Cir. 1972); United States v. Menna, 451 F.2d 982, 984 (9th Cir. 1971), cert. denied, 405 U.S. 963, 92 S. Ct. 1170, 31 L. Ed. 2d 238 (1972); United States v. Nelson, 458 F.2d 556 (5th Cir. 1972); United States v. Sullivan, 459 F.2d 993 (8th Cir. 1972).

The order is reversed, and the indictment is reinstated.


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