Barry v. State

925 P.2d 255, 1996 Alas. App. LEXIS 48, 1996 WL 596249
CourtCourt of Appeals of Alaska
DecidedOctober 17, 1996
DocketNo. A-5860
StatusPublished
Cited by2 cases

This text of 925 P.2d 255 (Barry v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Alaska primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barry v. State, 925 P.2d 255, 1996 Alas. App. LEXIS 48, 1996 WL 596249 (Ala. Ct. App. 1996).

Opinion

[256]*256 OPINION

MAJSTNHEIMER, Judge.

David Barry was convicted of criminally negligent homicide, AS 11.41.130(a), for a homicide committed while he was driving drunk. Barry was sentenced to 5 years’ imprisonment with 3 years, 3 months suspended. As one of Barry’s conditions of probation, Superior Court Judge Larry R. Weeks prohibited Barry from possessing any firearm. Barry now challenges this condition of probation. We affirm the superior court’s decision.

Barry brings a two-pronged attack against Judge Weeks’s decision to forbid him from possessing firearms. First, Barry argues that Judge Weeks’s action was based on a misunderstanding of federal law. Judge Weeks imposed the probation condition under the assumption that federal law prohibits all convicted felons from possessing firearms of any type.1 Barry asserts that Judge Weeks was mistaken — that federal law does not in fact prohibit Barry from possessing firearms. The second part of Barry’s argument depends upon the first: assuming that federal law does not prohibit Barry from possessing firearms, Barry argues that the circumstances of his ease do not support the superior court’s decision to bar him from possessing firearms. See Roman v. State, 570 P.2d 1235, 1240 (Alaska 1977) (conditions of probation “must be reasonably related to the rehabilitation of the offender and the protection of the public”, and they “must not be unduly restrictive of [the probationer’s] liberty”).

The first part of Barry’s argument is wrong: federal law does in fact prohibit him from possessing firearms. The federal statute at issue is 18 U.S.C. § 922. Under subsection (g)(1) of this statute, it is unlawful for any person

who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year
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to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

Barry admits that any firearm and ammunition he might possess would have come to Alaska through interstate or foreign commerce. However, Barry relies on Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943), and United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971), for the proposition that 18 U.S.C. § 922(g) was not intended to punish felons’ possession of firearms per se, but only to punish a felon’s act of shipping, transporting, or receiving firearms in a commercial context (that is, while the felon was participating in commerce). Barry particularly relies on the following passage from Bass:

[18 U.S.C. § 922(g)] apparently does not reach possessions ... at all, even those with an interstate commerce nexus, but is limited to the sending or receiving of firearms as part of interstate transportation.

404 U.S. at 342-43, 92 S.Ct. at 520 (footnote omitted).

Barry’s argument has two flaws. First, even though the Bass Court indicated that the 1968 version of 18 U.S.C. § 922(g) did not prohibit a felon from possessing a firearm that had been transported in interstate commerce, the Court at the same time held that another federal statute, 18 U.S.C. app. § 1202(a) (1970) (repealed 1986), did prohibit felons from possessing such weapons.2

The Bass Court interpreted Section 1202(a) as prohibiting a felon’s possession or [257]*257receipt of any firearm “in commerce or affecting commerce”. 404 U.S. at 346 n. 14, 92 S.Ct. at 522 n. 14. The Court then added a “final word”

about the nexus with interstate commerce that must be shown in individual cases [under 18 U.S.C. app. § 1202(a) ]- [A] person “possesses [a firearm] in commerce or affecting commerce” if at the time of the offense the gun was moving interstate ... or if the possession affects commerce. Significantly broader in reach, however, is the offense of “receiving] [a firearm] in commerce or affecting commerce”, for we conclude that the Government [proves this element] if it demonstrates that the firearm received has previously traveled in interstate commerce.

Bass, 404 U.S. at 350, 92 S.Ct. at 524 (emphasis added) (footnote omitted).

The second flaw in Barry’s argument is that 18 U.S.C. § 922 has been substantially amended since 1971 (when Bass was decided). The statute, quoted above, now specifically forbids a felon from “receiving] any firearm or ammunition which has been shipped or transported in interstate or foreign commerce”. We also note that a related subsection of the same statute, 18 U.S.C. § 922(d)(1), makes it unlawful for any person “to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person ... has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year”.

The current statute manifests a clear Congressional intent to prevent felons from taking possession of either a firearm or ammunition that has moved through interstate commerce. See Ball v. United States, 470 U.S. 856, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985), where the Supreme Court held that a convicted felon who stole a handgun from a friend’s car could be convicted of violating 18 U.S.C. § 922 (the government having proved that the handgun was previously shipped in interstate commerce).

As an alternative argument, Barry asserts that felony probationers in Alaska are not subject to the restrictions of 18 U.S.C. § 922 because, upon their release from actual incarceration, probationers are considered to have their civil rights restored to them. Under 18 U.S.C. § 921(a)(20), “[a]ny conviction which has been expunged, or set aside[,] or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter”.

However, under Alaska law, defendants on probation or parole can not serve as jurors. See Singleton v. State, 921 P.2d 636 (Alaska App.1996)3

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925 P.2d 255, 1996 Alas. App. LEXIS 48, 1996 WL 596249, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barry-v-state-alaskactapp-1996.