United States v. Edward Thomas Malone

Ninth Circuit

United States v. Edward Thomas Malone

538 F.2d 250

CourtCourt of Appeals for the Ninth Circuit

DecidedAugust 23, 1976

Docket75-2636

StatusPublished

Cited by4 cases

This text of 538 F.2d 250 (United States v. Edward Thomas Malone) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

United States v. Edward Thomas Malone, 538 F.2d 250 (9th Cir. 1976).

Pincite

Opinions

OPINION

Before MERRILL and WRIGHT, Circuit Judges, and RENFREW,* District Judge.

PER CURIAM:

Appellant was convicted on two counts of possession of a firearm by a felon. [18 U.S.C. App. § 1202(a)(1)]. On appeal he contends that the government failed to prove that there was sufficient nexus between his possession and interstate com[251]*251merce. We agree and reverse the convictions.

The indictment charged that appellant “knowingly possessed and received” two firearms on or about November 22, 1974. The parties stipulated that the weapons had moved in interstate commerce some six and 18 months respectively before this date. No further evidence was adduced to prove a connection between appellant’s possession of the firearm and interstate commerce.

The court found him guilty on two counts of possession, not of receipt of the firearms. While the stipulation might have been sufficient to meet the government’s burden in a receiving case, it is not sufficient to establish the nexus with interstate commerce required in a possession case. United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971); United States v. Lathan, 531 F.2d 955 (9th Cir. 1976); United States v. Cassity, 509 F.2d 682 (9th Cir. 1974).

While we recognize that the distinction between the interstate nexus required in possession as opposed to receipt offenses is not drawn in the statute with convincing clarity, we are bound to follow our holding in Cassity. We are less reluctant after reviewing the Second Circuit’s recent treatment of the issue in United States v. Bel], 524 F.2d 202 (2d Cir. 1975). In a well reasoned opinion the court examined the statutory history of the offenses, the origin of the distinction as developed in Bass, its treatment in the lower courts, and the principles of federalism which support maintenance of the distinction before concluding that the Bass dictum should be heeded. We agree.

REVERSED AND REMANDED.

Free access — add to your briefcase to read the full text and ask questions with AI

OPINION

Before MERRILL and WRIGHT, Circuit Judges, and RENFREW,* District Judge.

PER CURIAM:

Appellant was convicted on two counts of possession of a firearm by a felon. [18 U.S.C. App. § 1202(a)(1)]. On appeal he contends that the government failed to prove that there was sufficient nexus between his possession and interstate com[251]*251merce. We agree and reverse the convictions.

The indictment charged that appellant “knowingly possessed and received” two firearms on or about November 22, 1974. The parties stipulated that the weapons had moved in interstate commerce some six and 18 months respectively before this date. No further evidence was adduced to prove a connection between appellant’s possession of the firearm and interstate commerce.

The court found him guilty on two counts of possession, not of receipt of the firearms. While the stipulation might have been sufficient to meet the government’s burden in a receiving case, it is not sufficient to establish the nexus with interstate commerce required in a possession case. United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971); United States v. Lathan, 531 F.2d 955 (9th Cir. 1976); United States v. Cassity, 509 F.2d 682 (9th Cir. 1974).

While we recognize that the distinction between the interstate nexus required in possession as opposed to receipt offenses is not drawn in the statute with convincing clarity, we are bound to follow our holding in Cassity. We are less reluctant after reviewing the Second Circuit’s recent treatment of the issue in United States v. Bel], 524 F.2d 202 (2d Cir. 1975). In a well reasoned opinion the court examined the statutory history of the offenses, the origin of the distinction as developed in Bass, its treatment in the lower courts, and the principles of federalism which support maintenance of the distinction before concluding that the Bass dictum should be heeded. We agree.

REVERSED AND REMANDED.

Cite This Page — Counsel Stack

Bluebook (online)

538 F.2d 250, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-edward-thomas-malone-ca9-1976.

Opinions

Related

Cite This Page — Counsel Stack