United States v. Terry Oliver Walker

income tax into consideration take not making personal in a suit an award America, UNITED STATES Employers’ injuries Federal Plaintiff-Appellant, (1970). Liability Act, 51-60 45 U.S.C. §§ v. Rail- Hudson Delaware & Blake v. See Terry WALKER, Appellee. Oliver Defendant- (2d way Co., Cir. (dissenting opinion). 1973) No. 73-1246. Appeals, court’s admission The trial Seventh Circuit. eco to total estimate as Dr. Martin’s wrongful Argued Sept. from the death loss nomic computation

proper amounted Decided Nov. merely arithmetical calculation to an Certiorari Denied March figures (as prospective fu based See 94 S.Ct. 1574. earnings) represented esti ture employ decedent’s mates testified complicated the evidence ers. Where fig extensive and involves numerous expert

ures, use of an economist’s trial permissible in the

testimony is (as discretion, here) provided judge’s jury. upon proof before based Trucking Co., 200 Perkins Moffa See (D.Conn.1961). Since

F.Supp. figures used was clear source danger that specified,

ly there was misinterpret Dr. Mar jury would testimony expressing his own

tin’s regarding present

personal probable in future decedent’s

value of distinguished a mathemat

come as in the on evidence based calculation

ical Elgin, Joliet & Allendorf v.

record. See Railway Co., 164, 133 8 Ill.2d

Eastern (1956). Moreover the

N.E.2d they jury clearly by Dr. Martin’s calcula not bound

were jury in returned an fact

tions and substantially Mar than Dr. lower

award

tin’s estimate. any of find no merit by appellant. advanced contentions fully jury’s verdict size of the find

supported and we the evidence trial of discretion

no abuse as exces to set it aside refusal

court’s Long Dagnello R.R. Island

sive. (2d

Co., below is judgment the court

affirmed. gun Dept. Muchow, Atty., U. On March was David S. J. C., Justice, Washington, shipped Miami, Florida, of Donald B. to a retail- D. Springfield, Mackay, Atty., 111., Alton, for iner Six months U. later S. Illinois.

plaintiff-appellant. pawnbroker, the retailer sold it a who party. resold it a third After Springfield, Cunningham, Edward J. party discovered that the was miss- 111., defendant-appellee. posses- ing, was found in defendant’s SPRECHER, Before and STEVENS suggestion sion. de- There is no Judges, CAMPBELL,* Circuit and Sen any had in- fendant connection with the Judge. ior District shipment terstate subsequent or with either of Thus, sales. Judge. STEVENS, Circuit stipulated that its evidence will sim- in- The district court dismissed (a) ply establish that defendant a charging defendant, dictment a (b) felon, pos- that he felon, “in victed had received a firearm a firearm which had sessed affecting commerce,” commerce and in in moved interstate commerce. 1202(a).1 App. violation of 18 U.S.C. The district these court considered F.Supp. 113. The light appeal facts in the of questions: raises two wheth- er, on the dismissal based U. United States v. indictment, facts not set forth in the S. L.Ed.2d appealable; (2) whether, order judge The district noted since defendant’s fire- rejected government’s original arm was inter- unrelated its earlier interpretation statute, namely, shipment, state the indictment pos- no nexus a between or an offense. session commerce need be The indictment is drafted lan- shown; judge the district then conclud- guage discovery of the statute.2 After ed that since this defendant’s only indicated that the firearm had any commerce, neither in nor had crossed a state line one occasion sev- effect on the nexus eral pos- months into before it came present. the Bass rationale was not session, defendant moved to dismiss rejected government’s argument He response motion, indictment. to that that the case was controlled dicta government stipulated to the follow- opinion,3 relying the Bass instead on the facts: * Judge Campbell TERRY OLIVER Senior WALKER William J. of having day been convicted on the 19th of No- District for the North- vember, Illinois, by designa- sitting ern District of Circuit Third Illinois, County, Judicial Circuit Madison Illinois, burglary, felony, knowingly re- part 1. That section was enacted as a of Title ceived, affecting commerce, in commerce and VII Omnibus Crime Control and Safe firearm, Titan, .25 caliber semi- Streets Act of Stat. pistol, B89543; automatic Serial Number provides pertinent part: 1202(a)(1), violation of Title Section “Any person who— Appendix.” United States Code “(1) has been convicted a court of po- any United States or of or State page opposition 3. At its motion felony litical subdivision thereof to dismiss receives, possesses, . . . and who quoted following portion the Bass transports or opinion: shall “Having concluded that re- $10,000 impris- be fined not more than quirement must read as years, oned for not more than two ‘possesses’ of- ‘receives’ both.” fenses, we add final word the nex- about charged: 2. The indictment us with interstate commerce which must day Septem- “That on or about the 7th be shown in individual cases. Gov- ber, 1971, City Cottage Hills, obviously ernment can burden in meet Illinois, variety ways. only Southern District of note some of “acquittal” reasoning Ponto rationale is thrust applicable unambiguous here. In each expression of cases requires an applied, al- which that rationale was crimi- congressional before intent leged was a refusal submit to duplicated offense nal regulation into the Armed Forces vio- induction the commerce App. lation 50 U.S.C. Under clause. judicial statutory scheme, that review jurisdictional is- first consider process normally classification is un- opinion. then the Bass sue registrant until the is available I. charge.8 a defend criminal In such jurisdic government our invokes The guilt cases, determination of inno- Act, Appeals 18 the Criminal tion typically analysis cence turns on an Jan effective amended U.S.C. § the defendant’s Selective Service file. 1890.4 uary 84 Stat. judge’s ruling Ponto holds that on statutory cured the That amendment merits the defense which is most re objection that we to our typically effect, asserted at trial in in Ponto Grochowski en banc viewed acquittal ruling an whether the made is However, amend Gustavson7 jury impaneled. after or before the is the alternative ment could not overcome cases, ground those for decision in rulings Ponto, The in Grochow predicated namely, dismissals ski, McCreery Gustavson and did in indictment forth facts set sufficiency govern volve the ap acquittals actually from which were charge. opinions ment’s As those re jeop by peal the double was foreclosed spectively stressed, each dismis ardy clause the Constitution. sals sustained the McCreery, merits of an affirma United States v. tive us, defense.9 case before example, ‘possesses person point emphasized these. This For was in the Ponto affecting majority’s analysis in commerce or com- of the constitutional is- merce’ time of the offense the sue : objection moving an interstate or on inter- “An to the local board’s classi- facility, registrant affects fication of a can be raised as a reach, Significantly prosecution commerce. broader defense under 50 U.S.C. App. ‘receivfing] Act, the offense of 462. The is Selective Service App. 460(b)(3), provides in commerce or com- U.S.C. that all questions merce,’ relating conclude the Govern- we review of the processing by ment its burden here it demon- meets classification and a board be pre- strates the firearm received reviewed this The manner. motion viously presented questions traveled commerce.” the instant cerning case classification, at 524. U.S. at Ponto’s which are only by raised defense. The decision to provides paragraph : 4. That now by judge dismiss the district was based on appeal “In a case an the ap- questions presented by this defense. As lie shall to a court such, ruling it was a on the merits decision, peals judgment, or order from defense. dismissing an indict- of a district court panel “The in Ponto decided or- one or ment information as to acquittal, e., der inwas the nature of an i. except appeal counts, shall more ruling on the merits de- jeopardy clause of lie where double discharged prosecution. fendant was prohibits Constitution the United States App.D.C. 7, See Pratt v. United prosecution.” further Upon (1939). 102 F.2d reconsid- eration, ruling we conclude that Ponto, below 454 F.2d 657 v. 5. United was, acquittal, and for rea- (1971). son, appeal by prohibit- Grochowski, 454 F.2d 657 States v. 6. United jeopardy ed the double clause (1971). Fifth Amendment.” 454 Gustavson, Ponto, 9. In 454 F.2d 677 defendant’s motion 7. United States “to dismiss (1971). judgment the indictment or for a directed stipulation government’s meaning apparent however, the of that general allega particularization reasoning is consistent with the revealing By reject tion in the indictment. led govern original prepared prove, facts construction of the statute. charge has, effect, ment narrowed the had construed the question decided indictment. every posses broadly covering statute as the in the district whether sion or of a firearm a con dictment, limited, as so describes viola victed felon. That 1202(a). tion clear that dis accepted by circuits, but, been five missal based on a determination of the Bass, persuaded the Second was to con sufficiency charge, narrowly strue the statute more to avoid type stipulation, subject ap the constitutional would oth issue that pellate See United review. States In erwise exist.11 this case district Fruehauf, 146, 157-158, 365 81 U.S. S. comparable felt that a constitu 547, Ct. L.Ed.2d 5 476. problem presented appli by tional is cation of the statute to For these facts. We therefore hold the rationale posses it is conceded that defendant’s jurisdic- of Ponto does not defeat our sion was not and did not commerce appear affect There would commerce. greater support be to constitutional II. application for the of the statute to cas applying every es like this than it to It is fair state the issue to possession of a firearm a convicted Supreme merits whether Court’s felon.12 describing dicta the reach of the really offense in means what quite clear, however, It say. appears it to Four other circuits Bass decision does not evidence recognized language have that the Supreme doubt Court with re- opinion directly applicable Bass to spect power Congress pro- to the to comparable facts those to before us.10 possessions. hibit all such Its problem The which the district court’s makes no reference to the constitutional identifies, however, question decision is whether which troubled the Second acquittal,” 647, (panel opin- see 454 F.2d 649 to federal criminal reflected ion), presenting many was construed this court as federal statutes.” 434 F.2d “questions concerning classification, Ponto’s * * * * * only by which are raised 454 F.2d defense.” (emphasis added). Accordingly, present at 663 “There is serious doubt majority ruling given statute, Ponto concluded “the be- case whether terpretation the in- was, acquittal. low an ...” for which contends, Ibid. See also 454 at 665 and F.2d 678 and could withstand constitutional scrutiny.” 473 F.2d 1381. Id. at 1299. Indeed, there be less: Giannoni, 10. United States v. 472 F.2d 136 premise rulings “If of these as at (9th 1973), 411 Cir. cert. denied U.S. least the lower court firearm im- decisions 396; 36 L.Ed.2d United ply, generally crimes which harm Brown, (6th 1181 Cir. injure business interstate a di- 1973) ; Mancino, prohibition rect of all such offens- (8th 1973) ; Cir. States v. Mul easy justify es would be at least as lins, 476 F.2d 664 prohibition against fire- noting obviously arms For 11. After convicted felons. stamp statutory out all struction made the reference to such crimes would better protect totally illogical merely terstate interstate commerce than commerce “either prevent Judge Hays them, surplusage,” some those mere stated: committed probable considerably guns.” Stern, “It B. more The ex-felons Commerce inserted Clause Revisited —The Federal- Congres- questions scope Crime, ization of Interstate avoid Ariz.L.Rev. approach (emphasis power added). mirror sional argued Moreover, deci- as the Circuit.13 part of Title 1202, enacted as a in Perez v. United that § sion dem- 922(g) 28 L.Ed.2d (h), VII, enacted as §§ support for onstrates, the constitutional statute, part of Title same IV congres- provided the statute substantially redundant an category of sional evaluation re- nexus were interstate part,14 ais of which transactions Although the quired for both sections. than a evaluation rather accept argument, did particular significance transac- adopt mini- did a construction district court’s tion before it.15 redundancy. mized the extent constitutionality concern with complements Title held that “Title VII misplaced. applied here was statute by punishing of be- a broader class IV rejection havior” U.S. argument no nexus need there IV, Title Title Unlike VII between interstate whatever sending receiving of firearms to the receipt of felon’s “as transaction.” guides did, rest on Id. federal criminal statutes support As Similarly, defendant here. expressly which also stated receipt “significantly Rewis United the offense Court possession the 28 L.Ed.2d broader reach” than the in a federal ambiguity Ap- the resolved offense. at Id. S.Ct. 515. lenity and parently of proscribed criminal statute favor un- change avoiding significant the “moving of the less clearly re- posses- balance Federal-State facility, an interstate if the Congress’ quired the statement of sion affects commerce.”» Id. at descrip- purpose.16 broad The Court’s at be- 524. differentiation receipt would also of the offense receipt plainly tion in- tween policies. important offend those seem to dicates that direct connection with opinion Nevertheless, demon- the entire required of- commerce is for the latter Marshall’s Justice that Mr. Thus, strates inas other criminal fense. stat- language deliberate and of juris- choice utes cited the a federal precise. dictional well be extra- perceptive congressional the A commentator noted 13. 14. Section 1201 contains significant finding reference receipt, pos- of omission and declaration that Supreme af- session, transportation stitutional doubt firearms fel- firmance of Circuit: the Second a burden ons constitutes on commerce or Supreme affecting “In Court December free threat flow safety President, decision affirmed the Second Circuit’s a threat Significantly, Mr. speech, Bass. exercise of free and to the effec- beginning operation government. noted at tive See 82 Stat. ‘for substan- the Court did so 236. tially un- made it different reasons’ which ques- necessary Stern, supra, 15 reach the constitutional 15. Ariz.L.Rev. 278- made Court Since points same Second most respect also federal We have Circuit with historically prosecution legisla- an offense a mat- statute, and its its structure expressly ter of State concern authorized history, is obvious that what tive from, Congress. Altobella, accepting the Second was not suggestion 315-316 of substantial Circuit was the upon that court constitutional doubt Stern, supra, 15 Ariz.L.Rev. also relied.” policy principle support- statute, neous to the “There is a basic second today’s Congress element of offense.17 essential result: unless conveys purpose clearly, its it will not Finally, expressly not significantly deemed to have ed that considerations of federalism changed the federal-state balance. lenity adopt require did not it to traditionally sensitive reading possible narrowest stat legislation areas, such as reading ute, appropriate broad requirement balance, the federal legislative purpose ly reflected the basic legis- clear statement assures that restricting activity firearm-related faced, lature has in intended fact 351, 92 Id. felons. bring issue, into the critical mat- Thus, reach of even broad ters involved in decision. proscribed offense case, In the instant arguably as if the almost extensive urged by broad Gov- prevailed Bass, the traditionally ernment local renders reading proof require does federal criminal conduct matter of jurisdictional fact relevant “to federal enforcement and would involve also alone.” Id. police substantial extension alleged that fact is S.Ct. 515. Since proof resources. Absent of some in this even case, terstate each nexus government’s stipulation, the dismis 1202(a) dramatically upon intrudes improper. sal was jurisdiction. traditional state criminal Reversed remanded. Absent clearer statement Congress of intention from than is CAMPBELL, WILLIAM J. Senior present here, interpret we do not Judge (concurring). District possession’ to reach the ‘mere n reversing reluctantly I of firearms.” concur dismissal of and do so Mr. Justice Brennan’s brief concur only because I consider United States v. ring opinion indicates that he would Bass, U.S. L. more, have said no and had Mr. Justice allowing no Ed.2d so, Marshall done I would affirm the presented. result under the facts here district court’s dismissal of indict proceeded “the Government However, ment. the Court’s assumption 1202(a)(1) that bans with continues the statement “we possessions receipts all firearms conclude that the meets its Government felons, convicted and that no connec e., respect burden here with [i. to tion with interstate commerce had to be “receiving” offense of firearm] demonstrated in individual cases.” demonstrates received firearm Applying at U.S. principles previously has traveled in interstate statutory construction, commerce.18” 404 U.S. at phrase held “in commerce or Opinion Footnote 18 ad only commerce” related not reading preserves vises “this transportation involving conduct of fire significant difference the ‘re between arms, but in which the also to instances ceipt’ offenses of Title IV and Title VII. charged defendant is receiv with either supra page 343, See 342-343.” At ing possessing firearms. page Opinion, S.Ct. at 520 of the Marshall, speaking Mr. 1202(a), for the Court notes unlike Title sending is “limited then continued: IV to the or receiv quoted approval 17. The Court with Sec- various other criminal statutes. See 404 341, citing ond Circuit’s mention of the fact inter alia U.S. 18 U.S.C. §§ reference in § interstate 1952 and 2421. approach mirrored to federal an interstate of firearms also, footnote transportation.” INDUSTRIES, INC., Plaintiff- DART at 520. Appellee, leads “significant difference” This AND E. I. Du PONT De NEMOURS firearm if a only one conclusion: Defendant-Appellant. COMPANY, in interstate ever traveled No. 72-1958. “re- defendant time previous receipt of that it, his ceives” proscribed Appeals, States Court 1202(a)(1), even Circuit. Seventh weapon in- receipt defendant’s Argued June transaction. wholly intrastate volved a Sept. Decided dictated this conclusion While deci- the Bass specific entirely in- implications sion, find I that Justice with all consistent for a regarding need say intention statement “clearer Congress”

before the 1202(a) requiring “inter- strue § case”, a in each nexus

state which, statutory construction view, “dramatically intrudes on jurisdiction.” is dif- traditional an instance conceive ficult charged person with which a charged also a firearm receiving the Gov- And all it. demonstrate is need ernment previously trav- received has “firearm commerce”, § eled virtually acts

effectively proscribes all

involving of fire- possession or person

arms felony. If the defendant having weapon received it was wherein

state other than the

manufactured, neces- will in inter-

sarily traveled have

state commerce. circumstances

The fortuitous to render § exist have to

would unlikely

1202(a)(1) inapplicable are so practice, “renders the statute

traditionally conduct local enforcement”,

matter

change balance” “federal-state had indicated recognized a clear- “absent not be Con- of intention statement

er

gress”.

Case Details

Case Name: United States v. Terry Oliver Walker

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Mar 18, 1974

Citation: 489 F.2d 1353

Docket Number: 73-1246

Court Abbreviation: 7th Cir.