filed: March 2, 1977; As Amended March 18, 1977.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA. Crim. No. 73-212.
Aldisert, Gibbons and Rosenn, Circuit Judges. Seitz, Chief Judge, Van Dusen, Aldisert, Adams, Gibbons, Rosenn, Hunter, Weis and Garth, Circuit Judges. Garth, Circuit Judge concurring in part and dissenting in part. Chief Judge Seitz, joins in this opinion. Gibbons, Circuit Judge, with whom Judge Aldisert joins, dissenting.
At stake in the present appeal is the vitality of several key provisions of the Gun Control Act of 1968,*fn1 a statutory program which restricts the right to bear arms of convicted felons and other persons of dangerous propensities.*fn2
Two principal issues pertaining to the Act confront the Court. First, we must determine whether Congress contemplated the use of an outstanding criminal conviction as a predicate for a firearms violation where the defendant questions the constitutionality of the prior conviction but failed to challenge it prior to proceedings involving the weapons offense. If such a conviction was intended to be so utilized, we then must decide whether there is any constitutional impediment to the regulatory regimen provided by Congress.
In July, 1972, defendant Bennie Graves was indicted on two counts for violating provisions of the Gun Control Act. The first count alleged that Graves had abridged 18 U.S.C. §§ 922(a)(6)*fn3 and 924(a)*fn4 in connection with the purchase of a shotgun when he certified on a registration form that he had not been convicted of a crime punishable by imprisonment for a term of at least one year although, in fact, he knew that he had been. The second count of the indictment charged Graves with contravening 18 U.S.C. Appendix § 1202(a)*fn5 because, after having been convicted of a felony, he willfully and knowingly received and possessed a shotgun that had moved in interstate commerce.
Underlying the firearms indictment was a state conviction for larceny of an automobile. In April, 1971, a state court had found Graves guilty of that crime, an offense punishable by a term of imprisonment exceeding one year. Graves never sought to overturn his state conviction either by direct appeal or by any mode of collateral attack. Nor did he attempt to expunge it from his record through a pardon or seek administrative relief from the strictures of the Act.
Immediately prior to his trial on the firearms charges, Graves moved to dismiss the indictment, claiming that the outstanding state conviction had not been constitutionally obtained. Graves grounded his motion on the proposition that, when arrested for auto larceny, he was seventeen years old; that the offense thus could have been disposed of by juvenile authorities; but that the juvenile court, after a hearing, decided to transfer the case to the adult criminal court, where Graves ultimately was convicted.
In the pretrial motion in the present case, Graves asserted that, at the hearing preceding transfer of the larceny charge to the adult court, he had been denied certain procedural safeguards mandated by due process and explicated by the Supreme Court in Kent v. United States.*fn6 Graves claimed, therefore, that his conviction for auto larceny was constitutionally defective and hence could not contribute to liability under the firearms statutes. The district court did not agree with that contention and refused to dismiss the indictment.
A trial then was held before the district judge sitting without a jury. Graves and the prosecution stipulated the basic facts pertaining to the acquisition and subsequent possession of the shotgun.*fn7 Upon entry of the stipulation, however, Graves moved for a judgment of acquittal, reiterating, in essence, the arguments that he had proffered in his pretrial motion to quash the indictment. The government responded that any constitutional infirmities in a prior conviction that had not yet been expunged could not constitute a defense to the firearms charges. Moreover, the government insisted that no proof as to the validity of the outstanding conviction was necessary for the present prosecution.
Subsequently, in May, 1975, the district judge, consonant with his denial of the pretrial motion, found Graves guilty on both counts, and sentenced him to prison under the Federal Youth Corrections Act.*fn8 Graves then filed an appeal which was heard by a panel of this Court. Thereafter, the case was set down for rehearing before the Court in banc.
We affirm the guilty verdicts on both counts.
To ascertain whether Congress intended that an outstanding felony conviction could lead to liability under the firearms statutes, even though a defendant asserts constitutional flaws in the prior conviction, we must examine those materials which may afford insight into Congressional intent: (a) the language of the statutes, (b) the legislative history, and (c) the opinions of other courts which have endeavored to interpret the statutes.
These materials suggest that the legislative draftsmen desired persons with extant, though arguably unconstitutional, convictions to forbear from the purchase and possession of firearms until their convictions are voided by the courts or until they are freed from such disability by executive action. Failure to so refrain was intended to subject such persons to the penalties specified in the Act. Congress, in our view, did not expect disputes over the constitutional validity of a prior conviction to intrude upon trials of federal weapons offenses, at least in the factual context presented by this case.
A. THE STATUTORY PROGRAM.
Our inquiry opens with an examination of the provisions under which Graves was charged and the overarching statutory program within which they operate.*fn9 The enactments alleged to have been violated fall within two separate titles of the Gun Control Act. 18 U.S.C. App. § 1202(a) is found in Title VII, and 18 U.S.C. §§ 922(a)(6) and 924(a) comprise part of Title IV.*fn10 Coverage of these titles overlaps; each one limits the right of convicted felons and certain other persons to receive or transport guns.*fn11 Nevertheless, the two titles are not wholly congruent. With minor exceptions, only Title VII directly regulates the possession of firearms by the named individuals. Title IV, unlike Title VII, bars false statements by participants in weapons transactions.
1. Title VII: 18 U.S.C. App. § 1202(a)
Section 1202 proscribes the possession, receipt or transportation, in interstate commerce, of firearms by classes of persons that Congress deemed likely to misuse them. Those covered include convicted felons, mental incompetents, dishonorable dischargees from the armed forces, individuals who renounce their citizenship, and illegal aliens.*fn12 There are only limited exemptions to the coverage of the Act. A convicted felon, for example, may become immunized from statutory liability if he secures a pardon expressly authorizing him to carry weapons.*fn13
On its face, § 1202 affords insight into Congressional intent with respect to the problems raised by this case. The provision speaks to the person who "has been convicted by a court . . . of a felony." It contains no requirement that the conviction be obtained in any particular manner. Thus, textually, it is the fact of conviction which calls into play the disability imposed by Title VII.
We note also that § 1202, despite its location within the federal criminal code, is essentially regulatory in nature. It is unlike most other criminal laws which proscribe acts that are in themselves pernicious, e. g., kidnapping, theft or embezzlement. By contrast, the receipt or possession of firearms does not constitute conduct that is inherently harmful. As a result, Congress has not interdicted such behavior altogether. Rather, what the legislative authors have done is to impose controls on activities involving weapons.
The Congressional declaration set forth in § 1201 voices concern regarding the deleterious effects of firearms use by persons with possibly dangerous inclinations.*fn14 Not surprisingly, the prohibitions established by Title VII are somewhat sweeping, indicating that the draftsmen desired to regulate individuals having even the slightest potential for threatening community safety. We cannot say, certainly on the record before us, that it was unreasonable for Congress to have believed that a person with an outstanding felony conviction, even one that has been attacked as unconstitutional, may be somewhat more likely than the average citizen to utilize a gun improperly. And the statutory terms suggest that an outstanding conviction may contribute to liability under Title VII and its central provision, § 1202.
2. Title IV: 18 U.S.C. §§ 922(a)(6) and 924(a)
Section 922(a)(6) declares that it is unlawful for any person "knowingly to make any false or fictitious oral or written statement . . ." in connection with the acquisition of firearms.*fn15 While this provision in itself does not oblige a prospective gun purchaser to divulge any criminal infractions on his record, the Treasury Department requires, as a precondition to acquisition of a weapon, completion of an application form on which the purchaser must state whether he ever has been convicted of a crime punishable by imprisonment for more than one year.*fn16 To deny an outstanding felony conviction on such form would appear to subject the purchaser of firearms to liability under § 922(a)(6). Section 924(a) delineates the penalties for making the false representations in weapons transactions.
Under the legislation, comprehensive records are to be kept with respect to all firearms transactions. No person is exempt from the regulatory coverage of the Act. Importers, manufacturers, dealers, collectors and purchasers alike must submit the information mandated by federal authorities. Indeed, the disclosure sections of Title IV do not differentiate in their treatment of felons and non-felons. Facially, §§ 922 and 924 are designed to punish any material misrepresentation concerning a weapons transaction, whether or not the misrepresentation relates to a conviction. They do not penalize an individual for being a convicted felon, but only for failing to answer truthfully questions about his criminal record. Even more so than § 1202, then, these provisions are essentially regulatory as contrasted with being strictly criminal in nature.
A question which immediately appears is whether Congress envisaged the prosecution of an individual with an outstanding conviction, though one asserted to be unconstitutional, when he denies ever having been a felon. Inspection of § 922(a)(6), and Title IV as a whole, suggests that a person who is a convicted felon must divulge the fact of his conviction, regardless of whether or not he believes it to be unconstitutional. And the registration form hardly intimates that a prospective purchaser of a firearm is entitled to conceal a conviction that has not been vitiated, any more than he could suppress any other fact material to the weapons transaction.
From the statutory language, it is apparent that the legislative framers intended to elicit detailed and accurate information so as to be able to monitor the movement of guns. In this regard, it is equally evident that Congress wished to penalize a person with an outstanding, though assertedly unconstitutional, conviction for failing to disclose the fact of such conviction.
We recognize that such an interpretation of §§ 922 and 924 tangentially implicates a conviction which may at some future time be deemed constitutionally infirm. Nevertheless, two components of Title IV strongly indicate that Congress intended that such a conviction could conduce to liability under the statutes. These features will be reviewed not only for their relevance to our discussion of Title IV, but also as support for the analysis concerning Title VII.*fn17
Sections 922(g) and (h), like § 1202(a), provide that it is illegal for convicted felons and other specified persons to receive or transport firearms.*fn18 The classes of persons covered by § 922, however, vary somewhat from those regulated by § 1202. In addition to convicted felons and mental incompetents, Title IV places firearms restrictions on illicit drug users, drug addicts, fugitives from justice and persons under indictment for crimes punishable by imprisonment in excess of one year.
Of these categories of individuals, the most pertinent to our inquiry in this case is the group containing indicted persons. An indictment ordinarily has limited legal effect, reflecting the deliberations of grand jurors as to probable cause for believing that the indictee might be guilty. Unlike a conviction, the indicted offense remains unproved, at least through trial; the individual named in the indictment remains innocent until guilt is demonstrated.*fn19 Even so, Congress undoubtedly found that persons under indictment have a somewhat greater likelihood than other citizens to misuse firearms. And so indictees were included within the prohibitory classification of § 922.
Section 922 would appear to provide some evidence of Congressional intent concerning the issues in this case. This is so since there are a number of similarities between an indictment and a conviction claimed to be unconstitutional. Both may result in the eventual vindication of the defendant, thereby dissolving the disability with respect to firearms. The restriction in either case may be only a temporary one which will be removed when a court frees the defendant from the scrutiny of the criminal justice system or when the executive branch grants a dispensation. To argue, as does Graves, that Congress intended to impose no disability on persons with outstanding convictions that they assert are unconstitutional, but to impose a disability on persons under indictment, would be to charge the legislative framers with a manifest inconsistency. We cannot discern that Congress sought to design such an asymmetrical statutory scheme.
The other relevant feature of Title IV, insofar as our current inquiry is concerned, consists of subsection (c) of § 925, which affords a procedure to secure relief from any firearms disability imposed on a convicted felon.*fn20 Basically, this provision stipulates that any person with a criminal record may apply to the Secretary of the Treasury for relief from the weapon restrictions dictated by federal law. The Secretary may grant such relief if he is satisfied that the "applicant will not be likely to act in a manner dangerous to the public safety and that the granting of the relief would not be contrary to the public interest." It is clear that § 925(c) applies to more than Title IV because it refers to disabilities on possession - an activity regulated by Title VII.*fn21
Section 925(c) is quite revealing in connection with the issues under review here because that provision affords an individual with an outstanding conviction, that he contends was unconstitutionally rendered, an additional method with which to attack such conviction aside from the usual direct appeal, a petition for post-conviction relief or the pardon procedure. No reason appears why assertions as to unconstitutionality could not be considered in the course of the decision by the Secretary.
More importantly, the presence of the relief provision suggests that Congress expected convicted felons, from time to time, to challenge their convictions and, in so doing, remove any prohibition before resuming their place among the ranks of users of firearms. Failure to overturn their disability, either judicially through an appeal or a post-conviction proceeding, or administratively through the Secretary or pardoning authorities, would reinforce the viability of the statutory restriction. It follows that Congress did not plan that the constitutionality of a predicate conviction would be adjudicated during the very prosecution for the firearms violation, at least where the defendant has not even sought to void such conviction through other available channels. Also, it is questionable whether Congress intended to permit such an individual to attack, or require the government to demonstrate, the validity of a prior conviction during a trial for misrepresentation on the requisite registration form.
In sum, the Gun Control Act in itself contains evidence, somewhat sparse but nonetheless telling, regarding the intent of Congress as to the questions posed in this action. The language of the statute suggests that the legislative framers sanctioned the use of an outstanding criminal conviction as a predicate for a firearms violation, even where the defendant questions the constitutionality of the prior conviction during his trial on the gun charges. This is particularly so where, as here, the defendant, before resuming the use of firearms, has in no way challenged such conviction through any of the procedures contained in the Act.
B. THE LEGISLATIVE HISTORY
On the face of the statutes, it appears that Congress intended that an outstanding conviction, even one claimed to be unconstitutional, could give rise to a firearms disability. However, our analysis may not terminate with such a conclusion. Rather, it is fitting to examine the legislative history to decide whether our reading of Titles IV and VII is congenial with the views of the framers expressed at the time of the passage of the legislation.*fn22 Such a history frequently facilitates a judicial determination of the purposes of the draftsmen.
Consisting of brief committee reports on Title IV and explanations of the Gun Control Act by its sponsors in the Senate and House, the applicable legislative record is somewhat limited in scope and does not speak directly to the precise issues raised in this case. Nevertheless, the statutory history does provide some clues regarding the Congressional intent. Careful consideration of what is available leads us to reaffirm our reading of the legislative terms.
Apparently, Congress initiated its efforts to develop an effective gun program at the behest of President Johnson. In February of 1967, he "urge[d] the 90th Congress to place [such legislation] high on its agenda in this session."*fn23 The President also declared that "to pass strict firearms control laws at every level of government is an act of simple prudence and a measure of civilized society. Further delay is unconscionable."*fn24 While this plea may have spurred drafting of the Gun Control Act, further impetus was provided by the assassinations, by gunmen, of Dr. Martin Luther King and Senator Robert F. Kennedy. The legislation was enacted shortly after these tragic acts of violence.
From the onset of its consideration of Titles IV and VII, it was Congress' objective to limit access to firearms to clearly "responsible [and] law-abiding persons."*fn25 The legislative history demonstrates deep solicitude over the ever-escalating misuse of firearms. Members of the Senate and House recognized that the "problem of gun abuse . . . is real, it is urgent and it is increasing each year . . . ."*fn26
The response was the strict federal firearms controls requested by the President, subjecting to regulation convicted felons and other individuals who might be more prone to weapons misuse than the general public. Given the legislative objective to impose effective controls, and the concomitant desire not to promulgate a "half-way measure,"*fn27 we believe that Congress did have in mind curtailing access to firearms by felons with outstanding convictions, even where these prior convictions are alleged to be unconstitutional.
Some evidence as to the Congressional design on this issue is provided by the floor speeches of Senator Long, a principal sponsor of Title VII. Speaking of the classes of persons whose privilege of firearms use would be limited, the Senator said that the disability applied to "persons who, by their actions, have demonstrated that they are dangerous, or that they may become dangerous."*fn28 Such language evinces, we submit, that Congress wished to regulate all persons who might be more likely than the average citizen to commit illicit acts with guns. The prohibitions of Title VII, as well as of Title IV, would attach once there is evidence of the possibility of misuse, including, it would appear, the fact of conviction.
In explaining to his colleagues the effect of Title VII, Senator Long invoked an analog in tort law:
In large part, Title VII is based on the legal theory that every dog is entitled to one bite . . . . But if the dog thereafter attacks a second neighbor, the owner is liable because he has been placed on notice that his dog is dangerous.
So, under Title VII, every citizen could possess a gun until the commission of his first felony. Upon his conviction, however, Title VII would deny him the right to possess a firearm in the future . . . .*fn29
Once a conviction is rendered, then, the prohibitions set forth by the statute take hold without more. It may be that the convicted felon can show that the "first bite" constitutes a legal nullity, or that it never occurred at all. But it is questionable whether Congress intended to permit such a person to reclaim the privilege of possessing or receiving weapons before he has attempted to bring about the invalidation of his criminal record or to secure an executive dispensation.
Another statement of Senator Long addressed to the treatment of convicted felons bears on our inquiry here: "What [Title VII] seeks to do is to make it unlawful for a firearm . . . to be in the possession of a convicted felon who has not been pardoned and who has therefore lost his right to possess firearms."*fn30 Previously, we observed that under the statute even a pardon does not restore such "right" unless the pardon expressly so states.*fn31 The pardon provision, and Senator Long's reference to it, indicate that the statutory disability is not one which was meant to be circumvented merely on a felon's belief that his conviction was obtained in an unconstitutional manner.
Once the firearms restriction attaches to an individual, the fact of conviction may trigger a Gun Control Act proceeding - at least until the disabled status is eradicated, either judicially or administratively. To subject persons with general pardons to liability, but to excuse those with unchallenged, but supposedly unconstitutional convictions, would foster disharmony in the application of the Act. There is precious little basis for saying that Congress intended to do so.
On the House side, explanations of the Gun Control Act similar to those of Senator Long were submitted by its proponents there. One such comment was proffered by Representative Pollock, who noted: "The overall thrust is to prohibit possession of firearms by criminals or other persons who have specific records or characteristics which raise serious doubts as to their probable use of firearms in a lawful manner."*fn32
An outstanding conviction, even one claimed to be constitutionally defective, may well raise questions whether the individual should be allowed to have access to weapons. The most obvious way for a person to remove doubts about his ability to deal with guns properly is to challenge the source of the doubts - namely, the prior conviction. It is reasonable to assume, therefore, that Congress expected a convicted felon to undergo the relatively modest inconvenience of a restriction on firearms use until he has obtained a judicial invalidation of his conviction or has secured an executive authorization lifting that restriction. To divine any other objective on the part of Congress might undercut the safeguards afforded by the Gun Control Act and increase the exposure of the public to continuing threats of crimes of violence. This we are unwilling to do.
With respect to solely § 922(a)(6), the legislative history fortifies the conclusion set forth in Part IIA that the provision places an obligation on all prospective gun purchasers to provide full and honest information, and bars false statements in firearms transactions. The House Report declares that § 922(a)(6) "prohibits the making of false statements . . . by a person in connection with the acquisition or attempted acquisition of a firearm . . . ."*fn33 The Report goes on to indicate that § 922(a)(6) is one of the "recordkeeping provisions" of Title IV.*fn34
Clearly, then, § 922(a)(6) and its companion penalty provision, § 924, impose liability upon firearms registrants who fail to tell the truth. Since Graves falsely denied having a criminal record even though he knew he had one, the application of these statutes to him would appear to be warranted. Graves is not being punished under § 922(a)(6) for being a convicted felon. Rather, he is being penalized for failing to disclose his criminal record. As a ...