450 F.2d 1054 | 5th Cir. | 1972
Lead Opinion
Appellant, having been previously convicted of a felony, was convicted in the
In 1969, federal agents went to a bar owned by a corporation of which appellant was president for the purpose of executing valid search warrants covering the place of business and appellant personally for illegal firearms. The search resulted in the discovery and seizure of two pistols and assorted ammunition in the place of business. Appellant was arrested and thereafter convicted as stated.
Appellant’s primary basis for appeal is grounded upon a constitutional attack on the statute insofar as it allows a conviction for possession without a showing that the possession was “in commerce or affecting commerce.” In support of his argument, appellant cites United States v. Bass, 2 Cir., 1970, 434 F.2d 1296, cert, granted, 401 U.S. 993, 91 S.Ct. 1234, 28 L.Ed.2d 530 (1971), for the proposition that it is essential to prove possession “in commerce or affecting commerce” to make out a constitutionally valid case under the statute.
If this court were to adopt the holding of Bass, appellant’s conviction would necessarily require a reversal. However, the constitutional issue raised in Bass has been considered by several other circuits. See Stevens v. United States, 440 F.2d 144 (6 Cir. 1971); United States v. Synnes, 438 F.2d 764 (8 Cir. 1971); United States v. Daniels, 431 F.2d 697 (9 Cir. 1970); United States v. Cabbler, 429 F.2d 577 (4 Cir. 1970), cert, denied, 400 U.S. 901, 91 S.Ct. 138, 27 L.Ed.2d 138. -In each of these cases the argument urged by appellant here was rejected. After careful study of these cases and the legislative history of the statute,
Appellant, however, raises a further constitutional issue in contending that the statute, insofar as it purports to regulate .conduct of felons for past activity, constitutes a violation of the constitutional prohibition against bills of attainder and ex post facto laws. U.S.Const., Art. I, § 9.
Appellant relies primarily upon United States v. Brown, 1965, 381 U.S. 437, 85 S.Ct. 1707, 14 L.Ed.2d 484, to support his bill of attainder argument. There a statute which prescribed punishment for members of the Communist Party, an easily ascertainable class, as distinguished from punishment for prohibited forms of behavior, was held to be a bill of attainder within the meaning of Article I, § 9, of the Constitution and therefore invalid. See also on bills of attainder, ex post facto laws and the reach of a presidential pardon, Ex parte Garland, 1867, 71 U.S. (4 Wall.) 333, 18 L.Ed. 366.
Appellant misconceives the applicability of Brown and Garland to laws imposing a disability upon convicted felons.
Appellant also raises several issues relating to evidentiary matters at trial. It is his contention that the failure to admit evidence of prior pardons was error. The statute does not apply to persons previously pardoned and expressly authorized to possess firearms. Nevertheless, the legal efficacy of a pardon is a matter of law. If the court was correct in its determination that the pardons were legally insufficient, then the evidence in question was properly excluded as irrelevant.
As to the prior New York felony conviction alleged in the indictment, appellant argues that he was pardoned by the President of the United States in 1945 by proclamation pardoning all felons convicted under the laws of the United States and serving at least one year on active duty with the armed forces between July 1941 and December 1945. As the government points out, however, a pardon is the prerogative of the sovereign, and the presidential pardon extended by its own terms only to federal convictions. See In re Bocchiaro, W.D. N.Y.1943, 49 F.Supp. 37; U.S.Const., Art. II, § 2. Therefore, the presidential pardon was insufficient as a matter of law to relieve appellant of liability under the statute, and it was properly excluded by the trial court. Similarly, the Pardon Board of Florida could not pardon the appellant for his New York conviction, and it too was properly excluded from the jury. In fact, that Pardon Board only purported to relieve appellant of any Florida disabilities visited upon him because of the New York conviction.
The final substantial issue raised on this appeal is whether evidence showing actual possession of the weapons prior to the effective date of the statute was admissible. Appellant contends that since possession prior to that time was not illegal, the evidence was inadmissible. This argument is without merit.
A possessive offense may be proved by evidence of actual or constructive possession. See Hale v. United States, 5 Cir., 1969, 410 F.2d 147. Here the government’s case rested upon constructive possession, and it was necessary as an element of the offense to prove that appellant knowingly had the power to exercise dominion and control over the firearms. 410 F.2d at 150. Thus, evidence of past conduct, even prior to the passage of the statute, was relevant to show that appellant had knowledge of the presence of the firearms at the bar and the ability to reduce them to actual possession.
We have examined each of appellant’s other assignments of error and find them all without merit.
Affirmed.
. The statute provides :
“(a) any person who — •
“(1) has been convicted by a court of the United States or of a State or any political subdivision thereof of a felony
% ;■! sfc sjs
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.”
§ 1203. Exemptions
This title shall not apply to—
(2) any person who has been pardoned by the President of the United States or the chief executive of a State and has expressly been authorized by the President or such chief executive, as the ■ case may be to receive, possess, or transport in commerce a firearm.
. Ordinarily we would probably await the decision of the Supreme Court in Bass. Appellant, however, is presently serving his sentence and has petitioned the court for an early decision on his appeal. Under the circumstances, his request is reasonable and we proceed to disposition.
. For an exhaustive examination of the legislative history and purpose of the statute, see Stevens v. United States, supra; United States v. Synnes, supra.
Rehearing
ON PETITION FOR REHEARING
It is ordered that the petition for rehearing filed in the above entitled and numbered cause be and the same is hereby granted on the authority of the supervening decision of the Supreme Court in United States v. Bass, dated December 20, 1971, 404 U.S. -, 92 S.Ct. 515, 30 L.Ed.2d 488. The judgment of the district court is reversed and the cause is remanded to the district court for further proceedings not inconsistent with United States v. Bass, supra.
The mandate shall issue forthwith.
It is so ordered.