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UNITED STATES v. TOBIN

February 10, 1976

UNITED STATES of America
v.
Richard Kent TOBIN



The opinion of the court was delivered by: KNOX

 KNOX, District Judge.

 This case presents the novel question of whether the change in Pennsylvania's drug laws which reduced the crime of simple possession of marijuana from a felony to a misdemeanor effectively made the defendant, who was a convicted felon under the former statute, eligible to purchase and possess firearms under 18 U.S.C. §§ 922(a)(6) and 924(a) and 18 U.S.C. Appendix § 1202(a)(1). These statutes prohibit the purchase and possession of firearms by persons convicted of certain serious crimes.

 The indictment is in two counts. Count I alleges violation of Section 1202(a)(1) of Title 18, U.S.C. Appendix *fn1" by receiving and possessing a.38 caliber revolver, which had been transported in interstate commerce, during a period in April of 1975. This is alleged to be unlawful because the defendant had been convicted on May 13, 1971, for violation of Pennsylvania's Drug, Device and Cosmetic Act, then codified at 35 Purdon's Pa.Stat. 780-4(q). Count II alleges that in obtaining the.38 caliber revolver from a licensed firearms dealer, the defendant made a false and fictitious statement intended and likely to deceive the dealer, in violation of 18 U.S.C. §§ 922(a)(6) and 924(a). *fn2" The statement in question was defendant's written certificate that he had not been convicted of a crime punishable by imprisonment for a term exceeding one year.

 Defendant challenges the sufficiency of the indictment on the ground that while his conviction in 1971 was a felony punishable by a term of imprisonment exceeding one year, the same offense is now a misdemeanor in Pennsylvania and is punishable by a term of imprisonment not exceeding one year. *fn3" Defendant also challenges Count II of the indictment as insufficient for failure to allege any effect on interstate commerce.

 The parties have stipulated to the admissibility of Government Exhibit No. 1 for the purposes of this motion. This exhibit shows that on May 13, 1971, the defendant, along with another person, was convicted by a jury in the Court of Common Pleas of Erie County, Pennsylvania, for possession of marijuana, in violation of the Drug, Device and Cosmetic Act, 35 Purdon's Pa.Stat. § 780-4(q). Tobin received a suspended sentence, was placed on one year's probation, and was required to pay the costs of prosecution. He did not appeal the conviction or sentence.

 At the time of Tobin's conviction for possession of marijuana, that offense was a felony and carried a possible two to five year term for a first offender. 35 P.S. § 780-20(c). That statute was repealed, however, and was replaced by the "Controlled Substance, Drug, Device and Cosmetic Act", 35 P.S. §§ 780-101, et seq., 1972, April 14, P.L. 233, No. 64, as amended, hereinafter referred to as "The Controlled Substance Act". Section 780-113(a)(16) of this Act states an offense equivalent to that for which Tobin was convicted. *fn4" Commonwealth v. Goodman, 454 Pa. 358, 311 A.2d 652 (1973). Violation of § 780-113(a)(16) is deemed to be a misdemeanor and carries a possible term of imprisonment not exceeding one year and a fine not exceeding $5,000.

 Section 39 of the Controlled Substance Act, 35 P.S. § 780-139(a), defines the relation of the newer act to its predecessor. Section 39(a) provides:

 
"Prosecution for any violation of law occurring prior to the effective date of this act is not affected or abated by this act. In any case not yet final if the offense is similar to one set out in this act, the penalties under this act apply if they are less than those under prior law."

 This provision clearly indicates that the Pennsylvania General Assembly did not intend to make a wholesale reduction of prior marijuana offenses from felony to misdemeanor status. As stated in Commonwealth v. Thomas, 450 Pa. 548, 301 A.2d 359 (1973):

 
"Three elements must be present before a pending prosecution can be governed by the new Controlled Substance Act:
 
(1) the original offense charged must be similar to one set out in the new Act;
 
(2) the penalties provided in the new Act must be less than those ...

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