Lead Opinion
In Mаrch 1977, defendant was indicted under 18 U.S.C. § 922(h) on the ground that he was a previously convicted felon who, on July 31, 1975, received a .38 caliber pistol which had previously been transported in interstate commerce. A jury found defendant guilty and he received a five-year sentence. Although defendant raises five issues in seeking a new trial, his most impressive point on appeal is that his constitutional rights were violated because he received a five-year sentence under 18 U.S.C. § 922(h) whereas the identical offense is proscribed by 18 U.S.C.App. § 1202(a), which carries a lesser penalty.
The essential facts that gave rise in his indictment under Section 922 can be stated briefly. On July 22, 1975, Russell Koch, Special Agent with the Treasury Department’s Bureau of Alcohol, Tobacco and Firearms, went in an undercover capacity to Carl’s Bar in Bellevue, Illinois, accompanied by an informant. Defendant was tending bar inside. Although the testimony at trial differed on who instigated the conversation, there was no dispute that Koch discussed with defendant a purchase of one or two firearms which were in defendant’s possession and that nine days later he sold Koch a .38 caliber revolver. The parties stipulated before trial that the revolver had been shipped in interstate commerce in 1948 and that the defendant in 1960 was convicted of a crime punishable by imprisonment for a term exceeding one year.
I. The Choice Between the 2-Year Sentence and the 5-Year Sentence
Because Section 1202 was part of a “last minute” amendment that was “hastily passed, with little discussion, no hearings, and no report” (United States v. Bass,
“It shall be unlawful for any person— (1) who is under indictment for, or who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;
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to receive any firearm or ammunition which has been shipped or transported in interstate commerce.”
Section 924(a) of the same statute provides for violations of Section 922 a maximum fine of $5,000 and a maximum imprisonment term of five years; defendant received the five-year maximum sentence.
18 U.S.C.App. § 1202(a), passed for the first time as Title VII — Unlawful Possession or Receipt of Firearms — of the same Omnibus Act, provides:
“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, * * 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.”
Defendant’s argument is that two statutes that proscribe the samе offense and require identical proof2 cannot subject an offender to different penalties. Apparently this argument has two dimensions, one based on statutory interpretation and the other based on potential constitutional impediments. We consider each in turn and conclude that it is impermissible to sentence a defendant for five years under Section 922(h) when he could receive only a two-year maximum sentence under Section 1202(a).
A. Statutory Interpretation
Section 922(h) had its origin in Section 2(f) of the Federal Firearms Act of 1938, 52 Stat. 1250, 1251. Section 5 of that statute made the penalty a $2,000 maximum fine or imprisonment for not more than five years, or both. 52 Stat. 1252. See 1968 U.S.Code Congressional and Administrative News pp. 2112, 2205, 2207 (1968). The statute was included as part of the Act that eventually was passed under the title of the Omnibus Crime Control and Safe Streets Act of 1968.
Although Section 922(h) was a part of that Act from its introduction in the House in 1967 through June of 1968 when the Act passed both Houses and was signed into law, Section 1202 was, as the Supreme Court described, a product of a last-minute amendment. See generally Stevens v. United States,
“Mr. Long of Louisiana. This amendment would take nothing from the bill. I applaud what the committee did. This would add to the fine work the committee did in this area.”
After the Act passed the Senate, the House reconsidered it in light of the Senate’s changes before the bill, including both Sections 922(h) and 1202(a), was signed into law in June of 1968. In explaining Senator Long’s amendment to the House, Congress
This brief legislative history leaves a perplexing problem of statutory construction. While it could be argued that the legislators’ comments indicate that Congress intended the two titles to coexist, it is hard to imagine, and nothing in the history suggests, that the legislators if they wеre focusing upon these Sections could have considered Section 1202 a “good complement” to Section 922. Because we therefore find the legislative history inconclusive,
To the extent that the individual sections of the Omnibus Act instead are regarded as separate enactments, a second principle of statutory construction comes into play: that a later-enacted statute can under certain circumstances serve as an implied repeal of an earlier statute. Applying this principle, it can be argued that Senator Long’s amendment — Section 1202(a) — is Congress’ last word on the issue of penalty because it was added to the bill after Section 922 and because it was first enacted in 1968 while Section 922 dates back 30 years earlier. While implied repeals are disfavored particularly in the absence of a manifest intent to repeal, the cоnflict between the two sections and the broad coverage of Section 1202 lend some support under these circumstances to the notion that the penalty in Section 1202 should predominate. See generally Radzanower v. Touche Ross & Co.,
Although these first two principles cannot be applied to these facts without some difficulty, the third and in this case most important principle seems to apply with full force. That principle is that when a “serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.” Crowell v. Benson,
B. Constitutional Issues Justice Black’s forceful dissenting opinion in Berra v. United States,
“The Government’s contention here also challenges our concept that all people must be treated alike under the law. This principle means that no different or higher punishment should be imposed upon one than upon another if the offense and the circumstances are the same.”
Tying these constitutional claims together are the basic concepts of separation of powers and delegation of authority. There is strong evidence that partially in order to avoid such vague penalties, excessive executive discretion and unequal justice, it is Congress’ constitutional responsibility in defining a criminal offense to affix a scheme of punishment. See United States v. Hudson,
Consistent with the assertedly “settled rule” that the prosecutor can select which of two overlapping statutes to apply to a defendant (United States v. Ruggiero,
Our reading of the cases cited by defendant, as well as those that have established the “settled rule” allowing prosecutorial choice, however, is that as applied to the choice between two statutes that have identical substantive elements they are either unpersuasive or inapplicable. Some of the opinions (e. g., United States v. Mauney, supra; Hutcherson v. United States,
While the issue involved in this case thus was arguably present but not reached in Berra (except by the two Justices who would have vacated the sentence), in the other cases relied upon by the Government (e. g., United States v. Fournier, supra), this issue was not present. Those cases either are or rely without explanation upon cases in which the two overlapping statutes at issue did not have the same elements or standards of proof.
II. Objections to the Underlying Conviction
In seeking to have his conviction vacated as well as his sentence, defendant first argues that the indictment was fatally vague. Since the indictment itself referred to all the elements of the crime, described the firearm as “a .38 caliber pistol” and stated that it had been transported from Springfield, Massachusetts to St. Louis, Missouri, the contention that the indictment should have been dismissed is frivolous. See United States v. Slatton,
The defendant also assails the trial court’s conduct at the voir dire on the ground that Judge Morgan should have inquired of prospective jurors whether they had previously served as jurors in criminal trials and whether defendant’s prior felony conviction might prejudice them against him. We have recently held that it is within a trial court’s discretion whether to ask the jurors about prior jury service. United States v. Staszcuk,
As to the district judge’s failure to interrogate the jurors about defendant’s prior felony, the voir dire shows that he first read the jurors the brief indictment which states that defendant had been “convicted on November 14, 1960, of a crime punishable by a prison term of one year.” Shortly thereafter, without expressly mentioning defendant’s prior felony, he asked the jurors seven questions with respect to their possible prejudice. Our reading of the transcript satisfies us that although asking at least some specific questions may be the better practice (see United States v. Dellinger,
As in Harris, we recognize that all the circuits are not in accord with that holding, at least as it applies to the notes of F.B.I. agents. Although the majority view appears to be the one stated in our Harris opinion (see United States v. Martin,
Defendant next urges that the district court did not properly handle alleged jury exposure to newspaper publicity about this case. After the jury had retired to deliberate, defense counsel called the court’s attention to a Peoria newspaper article of that date stating that defendant had pleaded guilty to a murder charge in 1960 and had received a 25-year sentence. Pursuant to agreement with counsel, the district judge polled the jurors after they returned the guilty verdict, and all indicated they had not read or heard about that article.
After the verdict had been returned, two jurors told the trial judge that a third juror told them of a newspaper account of the case before jury deliberations had commenced. Consequently, the district judge conducted separate interviews with the jurors 'in camera. The juror who supposedly told other jurors about reading the newspa
While Rule 43(a) of the Federal Rules of Criminal Procedure did not require that defendant or his counsel be present during these interviews because the verdict already had been returned, defendant argues that his counsel’s presence should have been required in order to assure a vigorous inquiry. Because defendant did not show or apparently even seek a hearing to try to show prejudice, and in light of the overwhelming evidence of guilt, we agree with the Fifth Circuit that while inviting counsel would have been the better practice, the error was harmless. United States v. Parker,
Finally, defendant submits that he was entrapped as a matter of law on the ground that the whole idea for the sale of a gun by defendant was implanted in his mind by informant Durine. Obviously, however, defendant was not entrapped into receiving the firearm, the crime with which he is charged, but rather was assertedly “entrapped” into selling the firearm, a crime with which he is not charged. It is worth noting that assuming the Government’s involvement in the sale might provide a theoretical basis for quashing the evidence obtained by the sale and thus rendering the firearm inadmissible (cf. Wong Sun v. United States,
The judgment below is vacated and the cause is remanded so that defendant may receive a maximum sentence of two years’ imprisonment instead of the five years previously imposed.
Notes
. As events during the proceedings below revealed, defendant had previously pled guilty to murder and had served approximately 13 years in prison.
. While it is true that Section 1202 is not a word-for-word copy of Section 922, the Government did not argue that the two statutes had any different substantive elements, at least as applied to the receipt of a firearm by a convicted felon. See generally United States v. Hairston,
. Ironically in light of its refusal to admit that Justice Black’s dissenting opinion on a subject that the majority refused to reach can lend support to a doubt of constitutionality, the dissent here argues that Justice Blackmun’s statement in dissent in United States v. Bass,
. As Judge Crowley noted in United States v. Hairston,
. Because defendant was not fined, we need not decide how thеse arguments apply to the fact that Section 1202 allows a larger fine than Section 922. Cf. W. LaFave and A. Scott, Criminal Law 79 (1972).
. The dissent’s argument that it is “so easy for the sentencing judge to mitigate when the more punitive section is used” (infra at 639) necessarily depends on the unsupported contrary position that Congress’ failure to establish one scheme of punishment can be excused by placing that burden on the courts. Compare United States v. Evans,
. As Justice Black noted in Berra, even assuming that a statute allowing a judge or-jury or even perhaps an administrative agency to select from a range of penalties can be analogized to the inconsistent penalty provisions here, a statute giving a prosecutor the power to choose between inconsistent penalties is significantly more offensive than the discretion involved in selecting from a range of penalties in one statute, because the judicial and administrative processes used in the latter selection are regulated by procedural protection and are more guided.
. In fact, in different contexts the Supreme Court occasionally has indicated concern over the conduct of prosecutors who face non-existent or ill-defined statutory boundaries. Cf. Thornhill v. Alabama,
. As Chief Justice Burger has noted, the fact that the two sections involved later were deemed not identical does not detract from the teaching of the case. Hutcherson v. United States,
. This same distinction seems to appear in Justice Black’s opinion in Berra,
. It is true, as the Supreme Court noted in United States v. Bass,
. Apart from the Eighth Circuit’s apparent reliance in United States v. Phillips,
. Because of the conflict of circuits suggested by the Government, this opinion has been circulated to the active members of this Court and no judge has requested a rehearing en banc with respect to this proposition.
. Defendant’s reliance on United States v. Lewin,
. It is significant to note that defendant made no claim that the destroyed notes were Brady material. Compare United States v. Harrison, supra.
. Although defendant asserts that the fact that the district judge assеrtedly told the two complaining jurors that the third juror, Mrs. Jones, would not serve on any further juries indicates that he believed that she had read the article, his denial of defendant’s motion for a new trial proves the contrary. Assuming it was made, his statement to the two complaining jurors may have been an effort to satisfy them that some action would be taken or it may have been a reaction to the judge’s belief that even though Mrs. Jones had not read the article during her jury service, she had told the other jurors that she had done so and on that basis was unfit for further service.
Dissenting Opinion
I respectfully dissent from Section I of the above decision, and from the relief granted thereunder.
Batchelder was indicted and tried for the illegal receipt of a firearm under 18 U.S.C. § 922(h), supra, pp. 628-629. He was sentenced to five years imprisonment, as permitted by 18 U.S.C. § 924(a). Sections 922 and 924 are both part of Title IV of the Omnibus Crime Control Act of 1968. Title VII of that same Act contains another provision, codified as 18 U.S.C.App. § 1202(a). Besides defining substantive firearm offenses, it authorizes only two years imprisonment but permits a $10,000 fine, whereas § 924 permits five years custody and a fine of only $2,000. There are also differences between the offenses covered by § 922(h) and § 1202(a).
The principal difficulty posed by this case, in my opinion, is whether the co-existence of these two' sections affords the prosecutor an impermissible choice of remedies.
Contrary to the majority, I find persuasive and applicable the long line of cases, several from our circuit, which hold that where an act may violate more than one criminal statute, the government may elect to prosecute under either, even if defendant risks the harsher penalty, so long as the prosecutor does not discriminate against any class of defendants. E. g., United States v. Beacon Brass Co.,
In fact, whether the statutes in question are identical, as stiрulated by the parties (see majority opinion supra n.2), or merely overlap depends upon the perspective from which they are viewed. Title IV which contains § 922 and § 924, and Title VII which contains § 1202(a), provide distinct statutory schemes. Section 922, with thirteen subsections, places specific and severe limitations on importing, exporting, receiving, purchasing, or selling various types of firearms and ammunition. Only subsections (g) and (h) of § 922 coincide with the coverage of § 1202, and even then not completely. Subsections (g) and (h) of § 922 prohibit a fugitive from justice, as well as one “who is under indictment for, or who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year,” from transporting or receiving, respectively, any firearm or ammunition which has been shipped in interstatе commerce. Section 1202(a) prohibits not only receipt and transportation of a firearm which has been in interstate commerce, see United States v. Bass, supra, but also possession of such firearm. It prohibits possession of firearms also by any person who received an other than honorable discharge from the Armed Forces, has renounced his United States citizenship, or is an alien illegally in the United States.
Four courts have specifically held that the coincidence of the two statutory provisions now before the £ourt and the resulting prosecutorial discretion do not violate any constitutional guarantee. In United States v. Phillips, supra,
The case at bar can be favorably compared with Hutcherson v. United States, supra,
Hutcherson’s next contention is that the offenses denounced by the federal and local statutes are identical and that he was entitled to be prosecuted*638 under the latter because the penalty for violating it is less severe than that provided by the federal statute. The theory is untenable. A defendant has no constitutional right to elect which of two applicable statutes shall be the basis of his indictment and prosecution. That choice is to be made by the United States Attorney. [footnote omitted].
In the case at bar, Judge Morgan was free to sentence Batchelder to two years or less — as prescribed under § 1202 — although he could and did sentenсe him to five years because Batchelder had been convicted of violating § 922(h). Rather than the prosecutor usurping the judge’s role in sentencing, the majority of this panel would restrict the trial judge’s discretion to enforce a federal statute. The only limitation which the prosecutor’s choice of § 922 placed on the judge’s sentencing is that the fine was limited to $2,000, whereas § 1202 would permit up to $10,000. Indeed, the logical extension of the majority opinion, notwithstanding its footnote 5, would be a judicial melding of §§ 924 and 1202, taking the two years imprisonment from § 1202 and the § 2,000 fine from § 924(a). Such judicial legislative patchwork has been strongly disapproved by the Supreme Court. See, e. g., United States v. Evans,
The majority relies on three rules of construction in holding that Batchelder must be resentenced under § 1202(a). The first is that if there is ambiguity in an act of Congress, such ambiguity shоuld be resolved in favor of lenity. It applies to the instant case only if the inclusion of two almost identical subsections of overlapping provisions in one enactment properly may be characterized as an ambiguity. The majority so finds, although it does -acknowledge that on the floor of the Senate, Senator Long, who introduced § 1202 into the Act, and Congressman Machen in the House, characterized it as complementary to the scheme for gun control in Title IV (p. 629, supra).
The second principle noted by the majority holds that when Congress passes a statute virtually identical to one already on the books, a court can deem the new statute as implicitly repealing the old statute. However, both statutes in this case are part of the same Act; and although § 1202 was added by an amendment, the House-Senate conference did consider it at the same time as § 922 and as part of the same Act. Both sections were signed into law simultaneously-
The third principle relied on by the majority holds that where there is doubt as to the constitutionality of a statute, it should be construed to be constitutional. Pursuant to its citation of this principle, the majority suggests that such a statutory scheme may be void for vagueness.
Although the legislative history is less clear than it could be, I do not find any ambiguity in the presence of § 922(h) and § 1202(a) in the same statute. Each section is perfectly clear, and the inference is irre-buttable that the Congressional Conference Committee and the Congress read the entire bill, were aware of the two different penalties, and found it to express the intent of the majority.
There is additional evidence that Congress is unconcerned by the overlap between Titles IV and VII of the Omnibus Crime Control Act. In 1971, the Supreme Court held in United States v. Bass,
The Court’s construction of •§ 1202(a), limiting its application to interstate possession and receipt, shrinks the statute into something little more than a duplication of 18 U.S.C. §§ 922(g) and (h). I cannot ascribe to Congress such a gesture of nonaccomplishment.
Yet neither the majority nor the dissenters in Bass suggested that prosecution under one or the other of these identical statutes would violate any constitutional prohibition. Having been put on notice that the Supreme Court read § 1202(a) and §§ 922(g)
Unlike the majority here, we find Berm v. United States,
A dissenting opinion, even by a respected constitutional scholar such as the late Justice Black, is weak authority on which to hold a statutory scheme to be of “questionable constitutionality.” That the Court did not reach the issue addressed in the dissent leads unavoidably to the inference that the other justices saw no significant constitutional question raised. Accord, Hutcherson v. United States, supra,
In sum, I do not agree that thе statutory scheme here under scrutiny is either ambiguous or unconstitutional. Congress explicitly afforded federal prosecutors two separate routes by which to prosecute persons who receive dangerous weapons. The violator knows the penalties he may be subjected to should he commit the offense; and, upon indictment, he is unambiguously apprised of the maximum fine and prison term by the appropriate statutory citation. The prosecutor’s exercise of discretion in choosing whether to seek an indictment under § 922(h) or § 1202(a) is so limited, and so easy for the sentencing judge to mitigate when the more punitive section is used, that I see no opportunity for, nor is there before us an allegation of, abusive or arbitrary exercise of prosecutorial discretion. I would affirm.