Appeal from a judgment of the United States District Court for the Southern District of New York, Dudley B. Bonsal, Judge, convicting defendant of possession of a firearm in violation of 18 U.S.C. App. § 1202(a). Reversed.
Kaufman, Chief Judge, Mulligan and Gurfein, Circuit Judges.
The defendant Marce Bell appeals from a judgment of conviction entered on May 19, 1975 in the United States District Court for the Southern District of New York after a one-day non-jury trial before the Hon. Dudley B. Bonsal, United States District Judge. Bell was charged in a one count indictment with receiving, possessing and transporting in commerce or affecting commerce a firearm after having been convicted of a felony in violation of Title VII of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. App. § 1202(a). Upon his conviction he was sentenced to a term of two years' imprisonment and is presently free on bail pending appeal.
On October 7, 1974 agents of the New York Drug Enforcement Task Force obtained a warrant to search Bell's apartment in the Bronx. The affidavit in support of the warrant indicated that a reliable informant had observed 10 ounces of heroin at that location. Bell was also observed by the informant to be carrying a.38 caliber revolver. The Task Force set up a surveillance team at the Bell apartment house and observed him and a woman companion leave the building and approach his car which was parked across the street and which carried New Jersey license plates. While Bell was reaching into the trunk to change a flat tire he was approached by an agent who noticed a bulge in Bell's waistband. The agent knew that Bell was reported to be armed and reached for the object which proved to be a loaded.38 caliber revolver. Bell was arrested and given the appropriate warnings. Bell's motion to suppress the gun was denied below and no suppression issue has been raised on this appeal. Bell was then taken to his apartment and the search warrant was executed. At that time Bell advised the agents that he had purchased the gun in Virginia several years before. He repeated this admission to an Assistant United States Attorney in an interview on October 8, 1974 just prior to his arraignment. The revolver bore the legend "I.N.A., Made in Brazil." There was evidence below that I.N.A. was an abbreviation for "Industrial National Arms," a Brazilian corporation now defunct and its records destroyed. It is not disputed that Bell had been previously convicted of manslaughter in the Supreme Court, New York County and was sentenced to imprisonment for a term of five to seven years.
Hence, the only issue on this appeal is whether Bell's possession of a gun which was manufactured in Brazil and purchased in Virginia some years before constitutes a sufficient nexus with interstate commerce to come within the language of the statute, 18 U.S.C. App. § 1202(a).
The language of the statute which is pertinent to the inquiry provides:
(1) 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 . . . any firearm shall be fined not more than $10,000 or imprisoned for not more than two years, or both.
The court was first called upon to construe the statute in United States v. Bass, 434 F.2d 1296 (2d Cir. 1970). In that case the Government urged that the phrase "in commerce or affecting commerce" modified "transports" alone but had no application to "receives" or "possesses." This court, which characterized the legislative history of the statute as "unedifying and inadequate," 434 F.2d at 1298, rejected the Government's interpretation which we had indicated would create serious constitutional doubts. We concluded that receipt and possession as well as transportation of the firearm must be shown to have been "in commerce or affecting commerce." Since the Government had offered no proof of any interstate movement, there was in Bass no occasion to discuss the question now before us, i.e., what degree of interstate commerce involvement is necessary to sustain a conviction.
The holding of this court in Bass was affirmed on appeal in United States v. Bass, 404 U.S. 336, 30 L. Ed. 2d 488, 92 S. Ct. 515 (1971), with Mr. Justice Marshall writing the opinion for the Court in which Justices Douglas, Stewart and White concurred fully; Justice Brennan concurred in part, and Justice Blackmun filed a dissenting opinion in which Chief Justice Burger joined. The majority, although characterizing the statute as ambiguous (the Government in fact conceded that it was not a model of logic or clarity), held that an interstate nexus was required for all three offenses proscribed - transportation, receipt and possession. The Court did not reach the constitutional issue raised below but grounded its holding on two policies: first, in construing a criminal statute any ambiguity should be resolved in favor of lenity and secondly, that absent a clear manifestation of intent, Congress will not be deemed to have defined as a federal crime that conduct which is readily denounced as criminal by the States.
Mr. Justice Marshall then proceeded in Part III of the opinion by way of dicta to discuss what interstate nexus must be established with respect to the "possession" and "receipt" ...