United States v. Batchelder

PETITIONER:United States
RESPONDENT:Batchelder
LOCATION:Seneca County Court

DOCKET NO.: 78-776
DECIDED BY: Burger Court (1975-1981)
LOWER COURT: United States Court of Appeals for the Seventh Circuit

CITATION: 442 US 114 (1979)
ARGUED: Apr 18, 1979
DECIDED: Jun 04, 1979

ADVOCATES:
Andrew J. Levander – for petitioner, pro hac vice
Charles A. Bellows – for respondent

Facts of the case

Question

Audio Transcription for Oral Argument – April 18, 1979 in United States v. Batchelder

Warren E. Burger:

— Justice Stewart.

We’ll hear arguments first this morning in United States against Batchelder.

Mr. Levander, you may proceed whenever you’re ready.

Andrew J. Levander:

Mr. Chief Justice, and may it please the Court.

This case is here on a government’s petition to review a decision of the United States Court of Appeals for the Seventh Circuit.

At issue is the interaction of the sentencing provisions of two separate titles of the federal gun laws, underlying a statutory decision of the court below of constitutional questions implicating the scope of prosecutorial discretion and validity of overlapping criminal statutes.

At the outset, I would like to emphasize that there is no question here concerning the correctness of respondent’s conviction.

The only question presented concerns respondent’s sentence.

Following a jury trial in the United States District Court for the Southern District of Illinois, respondent was convicted of one count of violating 18 U.S.C. 922 (h).

As this Court concluded in Barrett against United States, that statute unambiguously prohibits felons, such as respondent, from receiving a firearm that has traveled in interstate commerce.

The evidence supporting respondent’s conviction may be summarized briefly.

On July 31, 1975 respondent sold a .38 caliber pistol to a federal undercover agent for $70.00.

At this time, respondent stated to the agent that he had received the gun following a burglary in St. Louis, and that in the recent past he had had and transferred other firearms.

Respondent stipulated to the facts at trial that the pistol had traveled in interstate commerce, and also to the fact that he had been previously convicted of a felony in 1960.

The District Court sentenced respondent to five years imprisonment in accordance with Section 924 (a) of Title 18.

That statute makes clear that a violation of Section 922 (h) is punishable by up to five years imprisonment and/or $5,000.00 fine.

On appeal, the Seventh Circuit affirmed respondent’s conviction.

A divided panel however, concluded that despite the expressed provisions of Section 924 (a) respondent can only be sentenced up to two years in prison.

The court’s conclusion was based on the fact that respondent’s receipt of a firearm also violated Section 1202 (a) of Title 18.

And that provision carried only a two-year maximum penalty although it also carried a larger fine that is $10,000.00.

The Court of Appeals felt this overlap raise serious constitutional questions.

Its decision, however, accorded the rest on statutory grounds.

Judge McMillan dissented from the Court of Appeals decision noting that the overlap between the five-year statute and the two-year statute are very common among criminal statutes in Title 18, and that the Government has traditionally had the discretion to pursue a defendant under any of applicable statutes.

Warren E. Burger:

Do you think that’s analogous to the discretion of the prosecutor whether he should charge a first-degree murder for example or second degree murder or manslaughter, or is there an alternative?

Andrew J. Levander:

I think it’s very analogous, Your Honor.

And this Court in Gregg against Georgia founded that that discretion to actually charge first-degree murder or not to charge didn’t violate the constitutional rates, constitutional difficulties.

It is also similar to the discretion of this Court upheld in Bordenkircher against Hayes.

That is the discretion of the prosecutor to — in plea bargaining to add various counts or not add various counts.

It is also —

Potter Stewart:

There’s also a difference is, unless I misunderstand it that the elements of the offense at least with respect to this defendant were exactly the same.

Andrew J. Levander:

Well, Your Honor I don’t think that is — I think that’s the Court of Appeals conclusion.

I don’t think that’s true if one looks at the statutes carefully.

Potter Stewart:

Well, I know with respect to other defendants, they might not have —

Andrew J. Levander:

No, no even with respect to a convicted felon, there is a difference in the commerce clause element between these two statutes.

Following this Court’s decisions in Barrett, Bass and Scarborough there’s a difference between 1202 (a) which allows a defendant to be convicted if the firearm has either travelled interstate commerce or affected interstate commerce, whereas, Section 922 (h), the five-year statute, the firearm must have traveled interstate commerce.

Potter Stewart:

Again in this case, it was stipulated that the firearm had traveled in interstate commerce.

Andrew J. Levander:

That’s correct.

Potter Stewart:

So with respect with this defendant, the elements are precisely the same, aren’t they, unlike a first and second-degree murder or unlike the Bordenkircher against Hayes situation?

Andrew J. Levander:

Well if —

Potter Stewart:

Or was there a recidivist statute, as I remember it?

Andrew J. Levander:

— if, right.

Or that’s and as Oyler, as well.

Potter Stewart:

Right.

Andrew J. Levander:

There is — there are several decisions of this Court in which if one looks at what the proof of the Government is in terms of none contested elements of the crime, this Court has upheld the conviction under one statute or another, or found that no lesser included offense was necessary.

In Spies and in Bishop and those series of tax cases, the Court noted that even if Congress had drafted exactly identical statutes that might be unusual.

But they didn’t indicate in the least that those kind of identical statutes would be unconstitutional.

And in those cases, the defendant claimed that it was unfair or that he was entitled to a lesser included offense in the situation in which there was a felony — he was prosecuted for felony but his exact conduct and exact elements would also prove a misdemeanor.

Potter Stewart:

Mr. Levander, as we all know, there has been kicking around the Congress for quite a while now.

A proposed basic wholesale revision of the federal criminal code, would that Bill if it’s ever enacted eliminate all these overlaps and duplications or many of them?

Andrew J. Levander:

Well, it might eliminate some, however Section 1822 of S. 1437, that’s the current destination of the major provision of Title 18, contains both the equivalent of 922 (h), the five-year statute and 1202, and also continues to have a five-year penalty for the one and a two-year penalty for the other.

Although the fines are changed because under the revision, with my understanding Mr. Justice Stewart is that all felonies are punishable by certain standard fines.

William H. Rehnquist:

I would assume that in any comprehensive criminal code in astute defendant could find some set of facts which would violate more than one provision of it?

Andrew J. Levander:

There are many in Title 18, as we indicate in the brief in a long footnote, there are just numerous Sections which violate — which are overlapping to either similar or 100%.

For instance 18 U.S.C. 1001, which is the false statement statute overlaps with several other provisions both in Title 18 and other Titles concerning false statements to various government agencies and —

Potter Stewart:

An astute prosecutor could do it at least as well, and that’s the point, isn’t it?

Andrew J. Levander:

That’s correct that traditionally the prosecutors had that discretion and a discretion to choose one statute or another is no greater discretion in the Government’s view than the discretion not to charge at all or.

The Court’s statutory decision which was basically that where a defendant’s conduct violates both a two-year — the two-year provision and the five-year provision, he may only get the two-year sentence, was based on three maxims of statutory construction, principles of implied repeal, lenity and avoidance of constitutional questions.

The — it is well-established in the cases of this Court that implied repeals are disfavored in the law.

And only where the two statutes in question will be clearly repugnant to one another will this Court hold that one statute has impliedly repealed another.

However, here we clearly do not have repugnant statutes.

Andrew J. Levander:

The statutes viewed as a whole, cover very different grounds.

As the Court noted in Bass, the two statutes cover very different kinds of people.

For instance, in the five-year statute, fugitives from justice and addicts are covered.

And in the two-year statute, you have illegal aliens, ex-citizens and other groups which are not covered in the five-year statute.

Moreover, as I pointed out in response to Mr. Justice Stewart’s question a moment ago, the commerce clause element of the two statutes are quite different.

And there are also differences in the conduct which is prohibited.

The five-year statute only goes to receipt of a firearm, whereas the two-year statute goes to receipt, transportation, and possession.

And in Scarborough —

John Paul Stevens:

Well, do you think the differences between the two statutes are — would be sufficient to justify consecutive sentences?

Andrew J. Levander:

That’s a —

John Paul Stevens:

On these facts?

Andrew J. Levander:

On these facts?

I think that the answer would probably be not, Mr. Justice Stevens.

I think that for instance in the Eighth Circuit recently there was a decision called White in which certiorari was denied recently, in which the defendant was convicted on both receiving under 922 (h).

And he was also convicted of transportation under 1202.

And in that sort of circumstance, I think that the Government would argue and did argue that consecutive punishment would be possible.

Not only are implied repeals disfavored, but normally one would think that implied repeal involves two statutes, one which is enacted after another.

Here however, the two statutes, the five-year statute and the two-year statute were enacted at the same time.

One is Title IV and one is — the other is Title VII of the Omnibus Crime Control Act, and Safe Streets Act of 1968.

And it is very difficult to understand how it’s possible that two statutes which are enacted at the same time could possibly be an implied repeal of one or the other.

And indeed, the same Congress which enacted both statutes shortly thereafter reenacted both statutes with a different penalties in the Gun Control Act of 1968.

And at that time the Senate specifically considered raising the five-year statute to be a ten-year maximum penalty, although this provision was later deleted in conference.

But Congress was clearly aware of the two statutes, treated them as separate statutes and enacted and reenacted them, and obviously understood them to be self-fluctuating and separate gun titles.

The second principle of statutory interpretation upon which the Court of Appeals relied is the principle of lenity.

And it is true that where a criminal statute is ambiguous, this Court has often stated that it would be construed to benefit the defendant.

Here however, we submit there is no ambiguity whatsoever.

There’s certainly no ambiguity as the conduct prohibited, the Court so stated in Barrett.

And as to the penalty, 924 (a) without exception provides whoever violates the provision of this chapter in Section 924 (h), the five-year statute is part of that chapter, maybe punishable by up to five years imprisonment and a $5,000.00 fine.

There is no cross-reference or any indication of an exception in that statute.

Section 1202, the two-year statute on the other hand both sets out prohibited conduct and immediately after says that anyone who does this conduct shall be punished by up to two years imprisonment and a maximum $10,000.00 fine.

Andrew J. Levander:

And it also is very unambiguous and it permits structure in its language, it appears to be just a self-contained statute.

The penalty applies just to those violations that are set forth in the two-year statute, and there’s no cross-reference in that statute to the five-year statute.

Moreover, the legislative history indicates that there is no ambiguity here, and that Congress clearly intended that the five-year statute and the two-year statutes be prosecuted and enforced separately.

The two-year statute was added as an amendment in the legislative process to the Omnibus Crime Control Act, and Senator Long was the sponsor of the two-year statute.

And he stated that this statute is not intended to take anything from but rather to add to “the existing penalties and provisions” of Title IV that is the five-year statute.

And again the legislative history of the Gun Control Act which is the second Act that was passed by Congress in 1968 concerning these matters shows that Congress treated the two statutes separately in separate Titles of the Gun Control Act.

It viewed them as separate parts.

The language suggested they’re separate parts.

Finally, I would note that the Court of Appeals suggested that allowing a defendant to be sentenced to five years when his conduct also violated a two-year statute would be an absurd result or an unfair result.

But I think that this Court of Appeals decision and analysis may create the difficult results.

For example, the Court of Appeals in footnote 5 of its decision refused to address the question which fine provision of the two statutes would apply.

Now the five-year penalty statute carries the $5,000.00 fine.

The two-year statute carries a $10,000.00 fine. If it is the doctrine of implied repeal that is applicable, well then seemingly, the $10,000.00 greater fine that’s found in the two-year statute would be the applicable one.

If it is the doctrine of lenity that’s controlling, then in seemingly it would be the $5,000.00 fine that’s found in the five-year statute.

Potter Stewart:

What was the sentence actually imposed — the punishment actually imposed by the district judge in this case?

Andrew J. Levander:

It was a five-year — it was a five-year penalty, the maximum.

Potter Stewart:

And no fine?

Andrew J. Levander:

And no fine.

That’s why the court it didn’t have to reach the —

Potter Stewart:

Right, then you would agree it didn’t.

Andrew J. Levander:

That’s correct.

But the fact that it didn’t indicates — I mean that that question raises some serious problems.

I think another absurd result that might result from this decision is that Section 922 (h) (1) under which the respondent was prosecuted and convicted applies not only to those who have been convicted of a felony but those who are under indictment for a felony.

There is no such equivalent provision in the two-year statute, therefore a defendant who was under indictment at the time that he received the firearm could still get the five-year penalty.

But a day later, when he was convicted his penalty, the penalty — maximum penalty would be limited to two years under the Court of Appeals analysis.

The third maxim that the court relied on is the maxim that where possible, the court should construe a statute to avoid a serious constitutional question.

In the Government’s view, there are no serious constitutional questions here, but in any event, that the avoidance of a constitutional question is only possible where the statutes — the statutes in question may be fairly read in alternative fashions.

Here, there’s just, as I said in regard to the maxim of lenity, there’s no ambiguity.

There’s only one reading that’s fairly possible.

And as this Court held in Swain against Presley and that sort of a situation, the Court cannot avoid the constitutional question and must face it.

Andrew J. Levander:

Turning to the question of the constitutional — underlying constitutional questions, as I’ve indicated, the two statutes although in application in this case have similar proof involved.

They are very different, the scope of the two statutes, the person’s activities and the commerce clause element are very different.

And indeed as this Court recognized both in Bass and in Scarborough, it may well have been that Congress thought that it was enacting in a two-year statute, a statute along the lines of Perez.

That is a statute not requiring individualized proof of commerce clause jurisdiction in each and every case.

And in so far as the Congress thought that it was doing that, the two statutes were very much different as to their commerce clause nexus.

After the decisions in Bass, Barrett and Scarborough they are still different although the gap is not quite as great.

We mentioned before that the Government has always suggested and this Court has always followed that the prosecutor has large discretion in charging and in choosing the statute under which to prosecute or not prosecute a defendant.

In part that that discretion is based on the constitution itself, Article 2, Section 3 of the Constitution and the doctrine of the separation of powers.

The only limitation on that prosecutorial discretion as indicated in Bordenkircher and in Oyler is where the prosecutor exercises his discretion on the basis of arbitrary or unconstitutional factors, such as race or religion or gender or something of that nature.

There’s no assertion in this case that there — that the prosecution was based on any of those factors.

And indeed, looking at the record one can well imagine why the prosecutor chose to pursue the respondent under the five-year statute.

He had been convicted of murder in 1960.

He had a very long record before then and some 20 other prior convictions of some sort or other, including I think a felony conviction for writing in 1952.

And shortly after he’d been released from prison following his murder conviction, he was proceeding to apparently sell guns and trading guns, not only the gun in question but apparently he mentioned that he had had other guns in the recent past and had transferred those as well.

So the question becomes where could possibly statutes which have different elements be unconstitutional where they are clear.

And here, the conduct prohibited is clear, and the penalty provided for each of the two statutes is quite clear and there’s no exception made in under either statute.

The Court of Appeals and respondent suggest that the two statutes are identical.

And we would submit that even where the statutes were identical, there would be unconstitutional violation.

As long as it was clear that Congress intended there would be separate statutes.

This Court has indicated in Bell and in other cases that the major limitation on constitutional limitation on Congress’ power to enact separate statutes with different penalties or on to set the penalties for a criminal violation is the Eighth Amendment.

And there’s certainly no claim here that these statutes violate the Eighth Amendment.

It is arguable — I suppose that if you have identical statutes that there might be some sort of due process violation in terms of notice.

However, the due process notice line of cases seems to focus mainly on the conduct prohibited.

And here the conduct prohibited is very clearly prohibited.

It’s prohibited by two statutes not just one as regards with respondent.

And there is less reason for the criminal law to be so precise in the penalty provision in the sense that for instance the kidnapping statute provides that the defendant who is convicted of kidnapping may be punished by anywhere from zero to life imprisonment.

So it’s clear that that kind of — and that statute is not been held as unconstitutional, the breadth of its statutory provisions.

Here, it’s much even narrower one.

It’s from zero to five or if it’s under the three-year statute, from zero to two.

Lastly, I would point out that there is no unfairness to defendants if they’re prosecuted under the one statute or the other.

Andrew J. Levander:

If a defendant’s conduct constitutes some horrible acts or in need of strict punishment, he can get more than five — two years under the five-year statute.

If he is lucky enough to have been charged on the two-year statute, that’s fortuitous and he only gets the maximum two years.

And that kind of fortuitous mercy, this Court in Gregg against Georgia it said did not violate the Constitution.

And those defendants whose conduct is punishable by less than two years will receive less than two years under both statutes.

I would like to reserve the remainder of my time if there are no further questions.

Warren E. Burger:

Very well.

Mr. Bellows.

Charles A. Bellows:

Mr. Chief Justice, and Justices of the Supreme Court.

Section 922 (h) is a very severe and strict statute.

It doesn’t make any difference how long the interstate commerce took place as in our case.

It took place 30 years ago prior to the time he was charged with the crime.

It doesn’t make any difference whether or not he had been previously convicted of an offense in which he got probation.

Once he’d been convicted of a felony then he comes within that statute.

922 has history way back to 1933 where practically the same statute was involved in the Federal Arms Act.

Later on 1968, it was included in the Omnibus Crime Bill.

And it covers situation where a defendant is under indictment as well as being convicted.

Now, this may create a problem, its remarkable none of these problems has surfaced and I think they’re going to begin.

Supposed you had a case where a man was convicted under this 922 (h) and later on the other case in which he was under indictment, he was acquitted, what do you do?

It refers to fugitives.

It’s a fugitive for all the crime, what crimes are we talking about?

Parking tickets may be a crime.

Abandoning a wife may be a crime.

You have another provision referring to those adjudicated as mental defectives.

I can’t imagine charging a mental defective of receiving a gun.

I’ve never heard of a case such as this.

But this was intended, this statute, this Omnibus Bill is intended to prevent crime.

It could’ve been a very simple thing to have said among other things knowing under the age of 21 or 24 years of age shall receive a gun, or sell them.

I think that kind of a provision would really have brought down the incidents of crime in America but Congress didn’t want to go that far.

Now then we have the Amendment of 1202.

Now this is a last minute amendment.

Charles A. Bellows:

Senator Long came along with an amendment and he was asked if it was a substitute for the Bill.

And all he said was “They did a good job.”

Meaning the committee did a good job.

“But my amendment takes nothing from the Bill.”

He could’ve very well have said “this is or is another amendment.”

And so he offers it.

And there’s no conversation.

There’s no debate about it and there are changes.

It includes those convicted of crimes.

It refers to those that charge from the Armed Services under dishonorable conditions, I don’t know what that means.

Someday that will surface if this remains on the books.

And it refers to those who have renowned United States citizenship.

William H. Rehnquist:

Well are you suggesting there’s something constitutionally infirm about the provision about someone discharged from the Armed Forces under dishonorable conditions?

Charles A. Bellows:

I say these provisions are so ambiguous that serious consideration ought to be given by this Court as to whether or not both of them are constitutional.

In addition to the problem we have here of the two statutes where in the same crime subjects the offender to one sentence of two years and the other of five years.

William H. Rehnquist:

Was your client — is there any claim that your client was discharged on a dishonorable provision?

Charles A. Bellows:

No, I’m just pointing out — I’m just pointing out some of the problems —

William H. Rehnquist:

Just run me through the statute, kind of a thing?

Charles A. Bellows:

— that’s eventually have in both of these statutes, Your Honor.

Now the Court of Appeals said that the statutes may be void for vagueness and that they violated due process of law and equal protection of law, and applied the rule of lenity.

Now the Solicitor General talks about my client having been previously convicted of the offense of murder.

The same thing would apply if he hadn’t been convicted of murder.

The young Assistant United States Attorney would have indicted him too under 922 (h).

They rarely ever used the 1202 when they bring in the file on a man who sold a gun or bought a gun, the national inclination of the prosecutor is “I will draft an indictment charging him under the more severe statute.”

There’s a recent case that the Solicitor General called my attention to when I was out of town, one decided March 28th by the United States Court of Appeals for the District of Columbia, where the defendant was found guilty of the two statutes.

One of the five-year sentence carrying a five-year sentence, one of the two years and they applied the rule of lenity.

Now, the government argues there’s no ambiguousness about the statutes and here’s an extraordinary example.

He says what’s ambiguous about five years?

What’s ambiguous about two years?

Of course if you had only one section, one statute all by itself it is ambiguous.

Charles A. Bellows:

And I don’t say that the words have an ambiguous meaning all by themselves.

But when you put them to in together, you have an ambiguous situation.

Who has a right to choose where it’s the same offense, not two different offenses or one included in the other, but we have two same offenses.

Should a prosecutor have the right to assume the one that carries the harsher sentence?

Byron R. White:

Well, I suppose the prosecutor has some discretion in choosing whether to prosecute or not?

Charles A. Bellows:

Yes, Your Honor.

Byron R. White:

And is this any worse in degree?

Charles A. Bellows:

Yes.

As an old-time prosecutor, I did many times.

I would choose a particular section or decide to prosecute or not prosecute.

But where you have two sections both relating to the same crime, and the prosecutor says “You Mr. A, I’m going to charge with the section which calls for a five-year sentence.

And you Mr. B” — another defendant — “I’ll charge you under the section which carries a two-year sentence.”

I say there’s something wrong with it.

It’s —

Byron R. White:

You could say “I’ll charge you Mr. A but I’m not going to charge Mr. B.”

Charles A. Bellows:

You could say that.

Byron R. White:

Something wrong with that?

Charles A. Bellows:

Yes — no he could do that.

He could say I won’t charge you.

But if he’s going to use that section, he’s got to apply it equally to all persons charged with the offense, if he’s going to use it.

Not the one charge the five-year sentence and one with two-year sentence.

Has he the right to do it, should he do that?

Byron R. White:

Let me go back to your District of Columbia case.

I think you said that he was convicted under both.

Charles A. Bellows:

Under both.

Byron R. White:

And was he then of course sentenced under both?

Charles A. Bellows:

Yes.

Byron R. White:

Were the sentences concurrent or —

Charles A. Bellows:

They were concurrent.

Byron R. White:

Concurrent.

Charles A. Bellows:

Yes.

Byron R. White:

But the Court of Appeals applied the rule of lenity and held it to two years?

Charles A. Bellows:

Yes, Your Honor.

Byron R. White:

Alright.

Charles A. Bellows:

Now, the Solicitor General argues that Congress intended that Section 922 governed related penalty.

There is nothing in the Act to show that at all.

The Solicitor General argues at the Court and the Court of Appeals rewrote the gun laws.

They didn’t do that.

What they did was, they took two sections, two statutes carrying different sentences and tried to give meaning to them rather than declare them unconstitutional.

They tried to give meaning to them by applying the rule of lenity.

Warren E. Burger:

Well Mr. Bellows, a prosecutor faced with the decision before any charges made would be, or I’ll put it to you as a question.

Would he be entitled to take into account that the particular individual who had a prior murder conviction, and therefore so select the higher of the two penalty statutes on that ground?

Charles A. Bellows:

No, when you have the same offense with two different punishments.

We have the same crime —

Warren E. Burger:

What if that’s within discretion at all?

Charles A. Bellows:

I will say no, Your Honor.

That where they have the same offense carrying two different penalties, two different sections, one allowing for a five-year sentence one of two-year sentence —

Warren E. Burger:

The higher is just surplusage then.

It’s a nullity.

Charles A. Bellows:

Well, it’s — it could be described as that.

Warren E. Burger:

That’s the consequence of the decision of the Court of Appeals here, is it not?

Charles A. Bellows:

Well, the court said — the Court of Appeals said this “You have two statutes here that are ambiguous and apparently are void under the Fifth Amendment for being vague.”

And rather than declare them unconstitutional, they said “We’ll give meaning to it by applying the rule of lenity.”

And — or bringing the lower court to re-sentence the defendant to two years.

William H. Rehnquist:

Mr. Bellows, could you express — explain precisely why these two statutes are “void for vagueness under the Fifth Amendment”?

Charles A. Bellows:

Well, vague because how do you know what to apply?

William H. Rehnquist:

Well, five years is perfectly clear to me.

Charles A. Bellows:

Yes.

William H. Rehnquist:

Ten years is perfectly clear to me.

Two years is perfectly clear to me.

William H. Rehnquist:

There maybe a considerable overlap, but I can’t imagine how anyone could say it was vague?

Charles A. Bellows:

Well, but when you have two statutes that cover the same offense of the purchaser or receipt of a gun, one says the defendant may receive up to five years and the one receives two years.

The vagueness is and this will — is the prosecutor allowed to choose when we have two different sections.

William H. Rehnquist:

Well if your argument may be that the prosecutor ought not to be entitled to be given that discretion by Congress.

But I don’t see anything vague about the discretion is given.

Charles A. Bellows:

It’s my point and — but despite the Court of Appeals that that makes it vague, because it — there are no guidelines.

Had Section 922 provided that where a man who’d been previously convicted of murder or rape or burglary, he shall then be found conviction.

The sentence may run up to five years.

I could say that would be a good section.

But there’s no such showing.

There’s nothing in the statute that says that.

All it says is if you bought the gun your — the punishment may be five years.

And so it is vague, where who’s to choose between a section for applying the five years and the two years.

Harry A. Blackmun:

Really what you’re talking about are vague penalties in the — to use the language of the Court of Appeals.

Charles A. Bellows:

Yes, Your Honor.

Harry A. Blackmun:

Not vague language —

Charles A. Bellows:

No, language alone if you had just 922 alone or 1202 alone, it’s perfectly clear that when you put together two of them that conflict with each other then I say there’s a vagueness.

William H. Rehnquist:

Has there ever been a case from this Court that held unconstitutional a statute which was perfectly clear as to its proscription but had the vagueness problem that you perceive as to penalties?

Charles A. Bellows:

Not that I’m aware of.

I raise the question before this Court that in as much as the Court of Appeals said there are serious questions about the constitutionality of both of these sections that perhaps they ought to be declared unconstitutional.

I see no great harm if both these sections were declared unconstitutional and Congress rewrote them.

I see so many problems that could arise, eventually from all these — from prosecutions under both statutes.

And as the Solicitor General pointed out, the anomalies that are here proves my point that there are really problems with both.

They were passed in a hurry.

These statutes are passed fast because they wanted — the Congress wants to show the public they’re doing something to prevent crime.

But even though far enough —

Warren E. Burger:

But Mr. Bellows, is this really fundamentally much different from the inconsistent verdicts that juries sometimes render in which we — the courts have said that inconsistent verdicts are an inherent part of the system?

Charles A. Bellows:

Juries are entitled to that.

Warren E. Burger:

Well only because the courts have said they’re entitled to it though.

Charles A. Bellows:

Yes.

Charles A. Bellows:

And in our present case for instance, upon a voir dire by the court of the jurors after the verdict.

They wanted to know what the defendant was convicted of.

You know, it gets to that.

This is a tough case to fight in the courts where the indictment reaches them previously convicted of a felony, sometimes it creeps out what kind of a felony he is.

And jurors they can talk about anything.

For instance in this case the record will show they wanted to know why that Mr. Bellows come down the (Inaudible) and try the case.

So they can talk about anything they want.

And the vagaries of a jury are well known.

They can do as they please.

So I suggest —

Byron R. White:

They do?

Charles A. Bellows:

Yes.

Now then as I stated that we have submitted the Court to consider the question as to whether or not both sections could be declared to be unconstitutional and it would be no great loss really, because it could be rewritten and a better job could be done.

Finally, we suggest that the amendment by Senator Long was really a repeal of 922 (h).

When he was asked “Is this a substitute” he didn’t talk, he didn’t answer it and maybe he didn’t want to start a rumpus.

But he just said “They did a fine job and it’ll help.”

And anyway, it’s not they weren’t simultaneously passed, 922 came before the 1202 (a), 922 (h) came way back in 1933, so it wasn’t something new.

It’s been on the books for many years.

And there was an established rule that if there exist a conflict in the same Act the last provision must control.

And I would submit to the Court that the 1202 (a) could be considered as a repeal of 922 (h).

Thank you, Your Honors.

Warren E. Burger:

Thank you Mr. Bellows.

Do you have anything further Mr. Levander?

Andrew J. Levander:

Just a couple quick points if I might, Mr. Chief Justice.

First I would mention that although Section 922 (h) has its origins in a 1933 statute, the Federal Firearm Act, the statutes are very different.

The penalties were changed.

A presumption was eliminated that was in one statute and in another.

And the statutes were radically different in their scope.

Secondly, respondent suggests that Senator Long was not clear as to what he said when he introduced the Bill.

However, Senator Dowd asked him “Do I correctly understand that this amendment is not a substitute for Title IV?”

Andrew J. Levander:

Answer, “This amendment would take nothing from the Bill, if I applaud what the committee did, this would add to the final work the committee did in this area.”

And lastly, respondent suggests that the prosecutors across the country, federal prosecutors are always using 922 (h), the five-year statute as opposed to the two-year statute.

However, statistics from 1977 and 1978 show that firearm prosecution is brought under one statute or the other.

About 40% were brought under the two-year statute.

Now, I don’t know exactly how many of those cases could only have brought — been brought under the two-year statute because of the commerce clause element, but I suggest that the statistics indicate that the prosecutors are exercising their discretion in accordance with the factors that this Court approved in a footnote in Lovasco in which we cite in our brief.

If there are no further question.

Warren E. Burger:

Thank you gentlemen.

The case is submitted.