579 F. 2d 1088 - United States v. Wynde

The federal sovereign, like the States, must govern impartially. The concept of equal justice under law is served by the Fifth Amendment's guarantee of due process, as well as by the Equal Protection Clause of the Fourteenth Amendment. Although both Amendments require the same type of analysis, see Buckley v. Valeo, 424 U.S. 1, 93, 96 S.Ct. 612, 670, 46 L.Ed.2d 659, 730 (Jan. 30, 1976), . . . the two protections are not always coextensive. Not only does the language of the two Amendments differ, but more importantly, there may be overriding interests which justify selective federal legislation that would be unacceptable for an individual State.

An analysis of the equal protection of the law contention of the defendant requires a determination of whether the challenged legislative classification rests on a rational basis and does not impermissibly infringe on the exercise of a fundamental right9 or peculiarly disadvantage a suspect class.10 In determining the impermissible infringement questions, strict scrutiny is required. Maher v. Roe, 432 U.S. 464, 470, 97 S.Ct. 2376, 2380-2381, 53 L.Ed.2d 484, 492 (1977), quoting from San Antonio School District v. Rodriguez, 411 U.S. 1, 17, 93 S.Ct. 1278, 1288, 36 L.Ed.2d 16, 33 (1973), Reh. denied, 411 U.S. 959, 93 S.Ct. 1919, 36 L.Ed.2d 418 (1973); Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 312, 96 S.Ct. 2562, 2566, 49 L.Ed.2d 520, 524 (1976). The rational basis test has been described in Ohio Bureau of Employment Serv. v. Hodory, 431 U.S. 471, 489, 97 S.Ct. 1898, 1909, 52 L.Ed.2d 513, 527 (1977), as follows:

"We turn then to examine this state classification under the rational-basis standard. This inquiry employs a relatively relaxed standard reflecting the Court's awareness that the drawing of lines that create distinctions is peculiarly a legislative task and an unavoidable one. Perfection in making the necessary classifications is neither possible nor necessary. Dandridge v. Williams, (397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491), at 485, (90 S.Ct. 1153, 25 L.Ed.2d 491). Such action by a legislature is presumed to be valid."

We conclude that § 922(h) does not deprive the defendant of equal protection of the law. § 922(h) has withstood repeated constitutional attacks. E. g., United States v. Ocegueda, (C.A. 9, 1977), 564 F.2d 1363, 1365-1367 (holding that § 922(h)(3) is neither vague under the due process clause of the Fifth Amendment nor in contravention of the Eighth Amendment); United States v. Haddad (C.A. 9, 1977) 558 F.2d 968, 972-974 (holding that § 922(h) neither violates the Commerce Clause nor is unconstitutionally vague); United States v. Turcotte (C.A. 8, 1977) 558 F.2d 893, 895 (holding that § 922(h) does not violate the Second Amendment right to bear arms), Annot., 37 A.L.R. Fed. 696, 714-716 (1978); United States v. Craven (C.A. 6, 1973) 478 F.2d 1329, 1338-1340, Cert. denied, 414 U.S. 866, 94 S.Ct. 54, 38 L.Ed.2d 85 (1973), Reh. denied, 414 U.S. 1086, 94 S.Ct. 606, 38 L.Ed.2d 491 (1973) (holding, Inter alia, that the classification contained in the statute (i. e., § 922(h)(1)) prohibiting a person under indictment from receiving a firearm shipped in interstate commerce is not irrational and unjustified and does not deprive the defendant of due process of law under the Fifth Amendment. In that case the Sixth Circuit, on the equal protection issue, concluded that receiving firearms shipped in interstate commerce was not a fundamental right. In reference to the rational basis standard, Judge Miller, writing for the court, stated:

The Congressional findings and declaration of purpose of Title IV of the Omnibus Crime Control and Safe Streets Act of 1968 and the legislative history of this title amply demonstrate the nexus between violent criminal activity and the use of firearms. It was eminently reasonable for Congress to conclude that the indictment of an individual for a crime punishable by imprisonment for a term exceeding one year is so often indicative of a propensity for violence that the indictment classification of 18 USC § 922(h)(1) was justified in the public interest. 478 F.2d at 1339.);

United States v. Panetta (E.D.Pa.1977), 436 F.Supp. 114 (holding that § 922(h) is not beyond Congress' power under the Commerce Clause); United States v. Ziegenhagen (E.D.Wis.1976) 420 F.Supp. 72, 74-75 (holding without merit the identical argument made in this case, i. e., that the prohibition against receiving firearms transported in interstate commerce, but not firearms shipped in intrastate commerce, violated the defendant's equal protection of the law). Cf. United States v. Burton (C.A.8, 1973) 475 F.2d 469, 471, Cert. denied, 414 U.S. 835, 94 S.Ct. 178, 38 L.Ed.2d 70 (1973) (holding that related § 1202(a)(1) does not violate equal protection of the law); Cody v. United States (C.A.8, 1972) 460 F.2d 34, 36, Cert. denied, 409 U.S. 1010, 93 S.Ct. 454, 34 L.Ed.2d 303 (1972) (holding that § 922(a)(6) does not contravene the Commerce Clause, the Second Amendment right to bear arms, or equal protection of the law; nor is it invalid as a bill of attainder or as an Ex post facto law); United States v. Trioli (D.Mass.1970) 308 F.Supp. 358, 361 (holding that § 922(a)(6) is a valid exercise of Congress' power under the Commerce Clause).

On the basis of the foregoing authorities it is held that § 922(h) does not violate the defendant's right to due process of law or the inherent right to equal protection of the law.II. The Sufficiency of the Evidence Issue

The defendant claims that, under § 922(h), it is mandatory that the prosecution both positively identify the firearm exhibit as being the rifle in the possession of the defendant and show that the specific firearm had been shipped in interstate commerce. This is an argument that the evidence is not sufficient to support the verdict of the jury; and that as a matter of law the evidence does not support the conviction of the defendant.

The proper standard of appellate review in the Eighth Circuit has recently been restated in Durns v. United States (C.A.8, 1977) 562 F.2d 542, 545-546, Cert. denied, 434 U.S. 959, 98 S.Ct. 490, 54 L.Ed.2d 319 (1977):

On appellate review of the sufficiency of the evidence, the court must view the evidence in the light most favorable to the verdict rendered. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942). It must accept as established any and all reasonable inferences from the evidence that tend to support the jury's verdict. United States v. Overshon, 494 F.2d 894, 896 (8th Cir.), Cert. denied, 419 U.S. 853, 878, 95 S.Ct. 96, 42 L.Ed.2d 85 (1974). The evidence need not "exclude every reasonable hypothesis except that of guilt (; it is enough) that it be sufficient to convince the jury beyond a reasonable doubt that the defendant is guilty." United States v. Shahane, 517 F.2d 1173, 1177 (8th Cir.), Cert. denied, 423 U.S. 893, 96 S.Ct. 191, 46 L.Ed.2d 124 (1975). Furthermore, because circumstantial evidence is intrinsically as probative as direct evidence, Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127, 99 L.Ed. 150 (1954), the same standard applies where a conviction rests entirely on circumstantial evidence. United States v. Carlson, 547 F.2d 1346, 1360 (8th Cir. 1976).

On this point the defendant places primary reliance on Walker v. United States (C.A.8, 1974) 490 F.2d 683, in which a conviction based on armed bank robbery, a violation of § 2113(d), Title 18, U.S.C. was reversed and remanded for a new trial because the trial court erred in admitting into evidence a weapon.

At the trial, the Government elicited testimony regarding this pistol from the branch manager and the teller who were involved in the robbery. Both specifically stated that the pistol shown to them in court the one seized from the defendant's person was definitely not the weapon used in the robbery . . .

Despite this testimony and defense counsel's repeated objections, motions to exclude, and motions for mistrial, the trial court nevertheless admitted the pistol into evidence following the testimony of the police officer who seized the weapon from the defendant. (On cross-examination, the police officer himself admitted that he found no weapon identifiable as having been used in the robbery . . . Walker v. United States, supra, l. c. 684 n. 1.) We hold that this was prejudicial error.

This is not at all the classic case of admitting into evidence a "similar" weapon which was found in the possession of a defendant but which could not be positively identified as that used in a crime. Such evidence has been regularly admitted as relevant. (Emphasis added.) E. g., Banning v. United States, 130 F.2d 330, 335 (6th Cir. 1942); United States v. Cunningham, 423 F.2d 1269, 1276 (4th Cir. 1970). Here there was positive evidence that the pistol admitted was Not similar to the one used in the crime. Thus the traditional justification for the admission of such a weapon is cut away and the evidence must be seen as irrelevant since it was not probative of the proposition that the accused committed the crime charged. Walker v. United States, supra, l. c. 684.

The defendant's reliance on Walker is clearly misplaced, and his argument that the evidence was not sufficient to support the verdict is without merit. In this case there was evidence that there were no firearms other than Government's Exhibit 3 in the station wagon of Jean Wynde on June 2, 1977 (R. 144-145, 166); that the rifle, Government's Exhibit 3, previously moved in interstate commerce (Government's Exhibits 2 & 3; R. 7-11); that Winchester does not have a firearms manufacturing plant in South Dakota (R. 112); that the serial number of the rifle, Government's Exhibit 3, was unique among Winchester firearms (R. 112); testimony that Government's Exhibit 3 resembled the firearm in question, by witnesses Earl Evans, Hopkins, and Nelson (R. 14-15, 33, 92); that the custody of the rifle, Government's Exhibit 3, was traced from the defendant to the defendant's nephew, Nelson, and subsequently to Tribal Officer DeCoteau (R. 30, 33, 91-92, 94); and that the empty cartridge cases in the station wagon of Jean Wynde were fired by Government's Exhibit 3 (R. 98-99, 109, 111). The only inconsistency in the Government's case was the testimony of Fayant that the rifle he saw had scrollwork on it and did not look like the rifle the defendant possessed. This discrepancy does not as a matter of law entitle the defendant to a reversal of his conviction. The discrepancy was resolved by the jury, from more than ample evidence to support its finding, in favor of the prosecution.

III. The Contention That the Defendant Must Have Received the Firearm Prior to Any Intervening Intrastate Movement Issue

The defendant claims that the holding of the Supreme Court of the United States in Barrett v. United States, 423 U.S. 212, 96 S.Ct. 498, 46 L.Ed.2d 450 (1976), does not control in the factual circumstances of this case. He contends that the Government is required to prove that the defendant received the firearm prior to any intervening intrastate movement of it.

In Barrett, the petitioner was convicted of a violation of § 922(h). The Supreme Court granted certiorari because of the apparent conflict between the Courts of Appeals of the Sixth and Eighth Circuits concerning the requirements of § 922(h). United States v. Barrett, (C.A. 6, 1974) 504 F.2d 629, Aff'd, 423 U.S. 212, 96 S.Ct. 498, 46 L.Ed.2d 450 (1976); United States v. Ruffin, (C.A. 8, 1974) 490 F.2d 557. The question for decision by the Supreme Court was "whether § 922(h) has application to a purchaser's intrastate acquisition of a firearm that previously, but independently of the purchaser's receipt, had been transported in interstate commerce from the manufacturer to a distributor and then from the distributor to the dealer." 423 U.S. l. c. 213, 96 S.Ct. l. c. 499, 46 L.Ed.2d l. c. 453. The Supreme Court held in the affirmative.11 Mr. Justice Blackmun, writing the majority opinion, clearly expresses the Court's broad construction of § 922(h) and the Congressional purpose in enacting the statute as follows:

A. Section 922(h) pointedly and simply provides that it is unlawful for four categories of persons, including a convicted felon, "to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce." The quoted language is without ambiguity. It is directed unrestrictedly at the felon's receipt of any firearm that "has been" shipped in interstate commerce. 423 U.S. l. c. 216, 96 S.Ct. l. c. 501, 46 L.Ed.2d l. c. 454.

B. The very structure of the Gun Control Act demonstrates that Congress did not intend merely to restrict interstate sales but sought broadly to keep firearms away from the persons Congress classified as potentially irresponsible and dangerous. These persons are comprehensively barred by the Act from acquiring firearms by any means. 423 U.S. l. c. 218, 96 S.Ct. l. c. 502, 46 L.Ed.2d l. c. 455.

In United States v. Haddad, (C.A.9, 1977) 558 F.2d 968, the United States Court of Appeals for the Ninth Circuit passed on a contention similar, if not identical, to that of the defendant. The appellant in Haddad alleged that Barrett, which involved a purchase from a retailer who engaged in interstate commerce, was inapplicable to the purchase of a firearm by one private party from a second private party, when the latter did not engage in interstate commerce.12 The Court of Appeals for the Ninth Circuit found that "Barrett may not be read so narrowly," 558 F.2d l. c. 972, and affirmed the conviction. Judge Sneed, writing the unanimous opinion of the court, based the decision of the Ninth Circuit on three grounds found in Barrett :

The Court cited three reasons for its holding, all of which apply with equal force to the facts before us. First, the statutory language "is without ambiguity." Id. 423 U.S. at 216, 96 S.Ct. 498, 501. This language places within the reach of the statute the receipt of any firearm which "has been shipped or transported in interstate or foreign commerce." There is no reason to limit this language to direct interstate receipt or receipt from one who deals in interstate firearm transactions. Second, the Court noted that the structure of the Gun Control Act of 1968, of which section 922(h) is a part indicates an intent not merely to prohibit certain interstate transactions in firearms, but to remove firearms from the hands of persons Congress felt were dangerous, to wit, felons. The Court listed as its third reason the legislative history of the Gun Control Act and of Title IV of the Omnibus Crime Control and Safe Streets Act of 1968, which the Gun Control Act amended. This legislative history also supports the interpretation of the Congressional intent derived from the structure of the Act. The proximity of the felons (sic) receipt of the firearm to interstate commerce has little relationship to the accomplishment of the statutory goal. Appellant's receipt of the pistol clearly falls within the intended reach of section 922(h). (Citation omitted.) 558 F.2d l.c. 972.

The defendant, in his brief, fails to cite any language in Barrett or a single post-Barrett decision in support of his claim. The defendant's attempt to distinguish the facts in this case from those in Barrett is unpersuasive and without merit.

We adopt the conclusion, restricted to this issue, of the United States Court of Appeals for the Ninth Circuit in United States v. Haddad, supra, (C.A.9, 1977) 558 F.2d 968, and hold that the Government is not required under § 922(h) to prove that the defendant received the firearm prior to any intervening intrastate movement of it.13

IV. The Denial of Defendant's Proposed Instruction Issue

The defendant claims that the trial court erred in not giving his proposed instruction defining "receipt" of a firearm under § 922(h). The proposed instruction of the defendant is a restatement of his argument on Issue III, Supra, specifically, that the Government must prove that the defendant received the firearm prior to any intervening intrastate movement of it. This issue is resolved against the defendant by Barrett v. United States, supra, 423 U.S. 212, 96 S.Ct. 498, 46 L.Ed.2d 450 (1976), United States v. Haddad, supra, (C.A.9, 1977) 558 F.2d 968, and our decision on Issue III, Supra.

V. The Trial Court's Denial of Defendant's Motions for a Judgment of Acquittal and, in the Alternative, for a New Trial Issue

The defendant claims that the Government failed to meet its burden of proof because of alleged inconsistencies in affidavits subsequently taken of two of the Government's witnesses, Hopkins and Fayant. Therefore, the defendant argues that he is entitled, as a matter of law, to a judgment of acquittal. The applicable standard of review has been restated in United States v. Frye, (C.A.8, 1977) 548 F.2d 765, 767-768, as follows:

In considering a motion for acquittal, the verdict of guilty must be sustained if, viewing the evidence in the light most favorable to the government together with all reasonable inferences therefrom, there is substantial evidence to support it. (Citation omitted.)

This standard and our decision on Issue II, Supra, requires rejection of the defendant's contention. See also United States v. Frazier, (C.A.8, 1977) 545 F.2d 71, 74, Cert. denied, 429 U.S. 1078, 97 S.Ct. 823, 50 L.Ed.2d 798 (1977), Reh. denied, 431 U.S. 926, 97 S.Ct. 2204, 53 L.Ed.2d 241 (1977).

The defendant submits, in the alternative, that he has properly established grounds for a new trial pursuant to United States v. Frye,supra, l. c. 769:

Before a new trial on the ground of newly discovered evidence can be granted, each of the five conditions must be met:

(a) The evidence must be in fact, newly discovered, i. e., discovered since the trial; (b) facts must be alleged from which the court may infer diligence on the part of the movant; (c) the evidence relied on, must not be merely cumulative or impeaching; (d) it must be material to the issues involved; and (e) it must be such, and of such nature, as that, on a new trial, the newly discovered evidence would probably produce an acquittal. (Citations omitted.)

See also United States v. Easter, (C.A.8, 1977) 552 F.2d 230, 235, Cert. denied, 434 U.S. 844, 98 S.Ct. 145, 54 L.Ed.2d 109 (1977); United States v. Carter, (C.A.8, 1977) 549 F.2d 1164, Cert. denied, Carter v. United States, 430 U.S. 974, 97 S.Ct. 1665, 52 L.Ed.2d 369 (1977). The grant or denial of a motion for a new trial is within the discretion of the trial court and will not be upset on appeal unless there has been an abuse of that discretion. United States v. Easter, supra, l. c. 235; United States v. Carter, supra, l. c. 1165.

This issue does not merit an extended, elaborate discussion of the facts. We are in complete agreement with the finding of Judge Nichol that the defendant failed to satisfy requirements (c), (d), and (e) of United States v. Frye, supra, (C.A.8, 1977) 548 F.2d 765, 769. Further, we find that Judge Nichol did not abuse his broad discretion in denying the defendant's motion for a new trial. We also conclude that, even if the affidavits taken of Hopkins and Fayant were construed to constitute recanted testimony (a belief we do not share, given the circumstances under which the affidavits for the defense were taken),14 the defendant would nevertheless fail to meet the requirements for a new trial as stated in Mastrian v. McManus, (C.A.8, 1977) 554 F.2d 813, 822-823, Cert. denied, 433 U.S. 913, 97 S.Ct. 2985, 53 L.Ed.2d 1099 (1977):

In federal court, the impact of recanted testimony as a basis for a new trial motion depends both on the credibility of the recanting witness and the materiality of his testimony. Unless the recanted testimony would probably produce an acquittal on retrial, a new trial motion on this ground must be denied. (Citations omitted.)

On this subject, Judge Nichol made the following telling statement during the December 2, 1977, hearings:

. . . I feel that the affidavits that have been submitted by the FBI in this particular instance, and I'm taking into consideration the examination of . . . Fern Mathias, . . . which was certainly uncertain at most (sic), . . . (are) certainly far more credible than the testimony as shown in the affidavits submitted on the November 2nd hearing (PT. 124).

This finding of fact was not clearly erroneous, to say the least. The motions for a judgment of acquittal and, in the alternative, for a new trial were properly denied in accordance with the criteria set forth in United States v. Frye, supra, (C.A.8, 1977) 548 F.2d 765, and Mastrian v. McManus, supra, (C.A.8, 1977) 554 F.2d 813. The denial of each of these motions was based on appropriate legal standards and reliable findings of fact by the District Court.

The judgment of the District Court is, on all issues, affirmed.

For the reasons stated above, the judgment of the United States District Court for the District of South Dakota is hereby

AFFIRMED.