III. NEXUS TO INTERSTATE COMMERCE:
Defendant asserts that the interstate transportation of this firearm occurred before 1967 and is far removed from the date when defendant received the firearm. He maintains that the nexus between defendant's conduct and interstate commerce is so attenuated as to fail to meet the requirements of § 922(h). In support of this argument defendant cites United States v. Craven, 478 F.2d 1329, 1337 (6th Cir. 1973), which suggested that the statute requires that interstate transportation of the firearm be in close time proximity to the receipt of the firearm by defendant. Recent Supreme Court decisions on this subject reject this requirement, however, and hold that as long as the firearm has travelled previously in interstate commerce the statutory requirement is met.
In Barrett v. United States, 423 U.S. 212, 46 L. Ed. 2d 450, 96 S. Ct. 498 (1976), the Court analyzed the interstate commerce element of § 922(h). This statutory provision makes it a crime to receive any firearm "which has been shipped or transported in interstate or foreign commerce." In Barrett the defendant bought the firearm in question in an intrastate sale which was not connected to the interstate transaction which had occurred a few months before. The Court concluded that § 922(h) covered intrastate receipt of a firearm which previously had moved in interstate commerce. While the facts of the case were such that the interstate transaction was in close proximity to the receipt, the Court placed no time requirement on when the interstate commerce must occur.
Whatever doubt as to the nexus requirement might have remained after Barrett was resolved by Scarborough v. United States, 431 U.S. 563, 52 L. Ed. 2d 582, 97 S. Ct. 1963 (1977), in which the Court analyzed the interstate commerce element of 18 U.S.C. § 1202(a)(1), a provision analogous to § 922(h). Although the language of § 1202 is not identical to that of § 922(h), the Court in Scarborough placed the same interpretation on the interstate commerce nexus requirement as it did in Barrett. It concluded that as long as the firearm previously had travelled in interstate commerce the interstate nexus was satisfied. In Scarborough, however, the interstate commerce occurred several years before the date the firearms were found in possession of the defendant. Scarborough v. United States, 431 U.S. at 565 n.2. It is clear from that decision that when the firearm travels in interstate commerce is not material. Since the firearm in this case has travelled in interstate commerce, the statutory requirement has been satisfied.
IV. INTERSTATE COMMERCE BEFORE THE PASSAGE OF SECTION 922 (h):
Defendant asserts that he cannot be convicted because the interstate transportation occurred before the effective date of the statute, December 16, 1968. Section 922(h) does not require that the interstate transportation occur after its effective date. Rather, the language of the statute suggests by using the present perfect tense ("has been shipped or transported") that Congress intended § 922(h) to apply to interstate commerce which has occurred at some indefinite time in the past. The Court's interpretation of the statute in Barrett v. United States, 423 U.S. at 216-17, supports this conclusion. I can perceive no reason why this completed act of interstate transportation should have to occur after the effective date of the statute. The intent of Congress was not only to restrict the interstate movement of firearms by § 922(h); its broader concern was "to keep firearms away from the persons Congress classified as potentially irresponsible and dangerous." Barrett v. United States, 423 U.S. at 218. Courts uniformly have rejected defendant's argument when raised in cases involving 18 U.S.C. § 1202. See United States v. Three Winchester 30-30 Caliber Lever Action Carbines, 504 F.2d 1288, 1291 n.7 (7th Cir. 1974); United States v. Day, 476 F.2d 562, 569 (6th Cir. 1973); United States v. Oclit, 343 F. Supp. 447, 449 (D. Hawaii 1972). I agree with these decisions and believe their rationale applies with equal force to § 922(h). Thus, as long as the firearm has travelled in interstate commerce at any time before the defendant receives it, the statutory requirement is met.
JOSEPH S. LORD, III, CH. J.
AND NOW, this 7th day of July, 1978, defendant's motion for judgment of acquittal is hereby DENIED and he is ordered to report to Courtroom 17-A, United States Courthouse, 601 Market Street, Philadelphia, Pennsylvania, on July 17th, 1978 at 10:00 o'clock a.m. at which time the verdict will be rendered.
JOSEPH S. LORD, III, CH. J.