Justia Federal District Court Opinions

The defendant, James P. Craven, appeals his convictions under a six count indictment charging him with violations of the Federal firearms and narcotics laws. The first three counts of the indictment charged, respectively, the possession of an automatic Underwood Carbine, an automatic Beretta pistol and a Maxim Silencer, in violation of 26 U.S.C. Secs. 5861(d) and 5871. Count IV of the indictment charged Craven with receiving a Smith & Wesson revolver, transported in interstate commerce, while under indictment for a crime punishable by imprisonment for a term exceeding one year, in violation of 18 U.S.C. Secs. 922(h)(1) and 924(a). Counts V and VI charged the defendant with possession of heroin in violation of 26 U.S.C. Sec. 4704(a) and 21 U.S.C. Secs. 173 and 174, respectively. After a jury trial, the defendant was found guilty on all counts and sentenced to a total of 40 years imprisonment and fined $30,000.

On April 30, 1971, law enforcement officers searched a residence at 10180 Rustic Lane in Woodlawn, Ohio, pursuant to a federal search warrant directing the seizure of illegal firearms. The search uncovered an automatic Underwood Carbine (Count I), a Smith & Wesson revolver (Count IV), a strong box containing $13,000 in cash and monogrammed men's shirts bearing the initials JPC, in the master bedroom of the house. In a secret compartment located in the vertical riser of the basement stairs, the officers found a Beretta automatic pistol (Count II), a P-38 pistol and a Maxim Silencer designed for use with the P-38 (Count III).¹ Also found in this compartment was a brown paper sack containing 1852 glassine bags of heroin, 2000 empty glassine bags, a clear plastic bag containing heroin and a quantity of narcotic dilutants (Counts V and VI).² At the time of the police raid the defendant was not present at this residence but his wife, Mrs. Jackie Craven, and two other adults and three children were present.

The residence from which the illicit weapons and narcotics were recovered had been owned by a Mr. and Mrs. Christian until November 1970, when it was sold and title placed in the name of the Commons Corporation. Prior to this sale the defendant and his wife viewed the house with a third party who participated in negotiating the sale to the Commons Corporation. Subsequently, in December 1970, the property was transferred from the corporate entity to James P. Craven and Jackie Craven who moved into the house immediately after the Christians vacated it. Christian designed and built the Rustic Lane house in 1951 and lived in it with his family continuously until they moved in late December 1970. At the time the Christians vacated the house there was no secret compartment in the basement stairs.

On December 23, 1970, water service to the property was placed in the defendant's name and on December 28, 1970, Craven purchased a lawn tractor from a dealer in the area. This equipment was later delivered to 10180 Rustic Lane. On three occasions-December 1970, January and February 1971-a locksmith installed locks and rekeyed locks in the house and on each visit he dealt with Mrs. Craven. However, on February 17, 1971, the locksmith returned to the house and the defendant requested the locksmith to open the bedroom door because he was locked out. The locksmith opened the door, changed the lock tumblers and made two new keys.

In March 1971, one Alice Freeman went to the Rustic Lane house where Jackie Craven and the housekeeper were present. The defendant arrived later and sold Alice Freeman a white powder in a plastic bag in the basement of the house. On April 22, 1971, one Joel Cornelius went to the residence to collect his bill for putting a new roof on the house which he had installed at Mrs. Craven's request. He was met by Mrs. Craven and shown to the master bedroom where the defendant was sitting up in bed in his underwear. Craven then gave a key to Jackie Craven who went to a strong box in the closet, removed a paper bag and handed the bag to the defendant. The sack contained small bills and Craven counted out $3,100 and paid Mr. Cornelius. While the roofer was in the house he saw a revolver which looked like the weapon forming the basis of Count IV of the indictment lying near the defendant on the bed. He also observed several rifles lying about.

When the defendant surrendered to the authorities on May 4, 1971, he was accompanied by his attorney. Agent Ginetz of the Bureau of Narcotics and Dangerous Drugs read Craven the Miranda warnings and the defendant was processed through the customary booking procedures. While these administrative steps were being taken, Agent Ginetz and the defendant engaged in a conversation away from Craven's attorney. In response to the agent's inquiry about the guns the defendant stated that he was a gun collector. When asked about the machine guns the defendant said that he had had the machine guns for some time. While the defendant was being fingerprinted another agent inquired about the firearms and Craven told him that he had been collecting guns and had moved them to the Rustic Lane house from another location.

After the raid, Craven again met Alice Freeman and told her that the government did not have a case against him. He also stated to her that he was not present at the time of the raid and that he should have moved the "stash" earlier.

The defense presented evidence that Craven's fingerprints were not on the bag in which the heroin was discovered and that two other individuals besides Jackie Craven resided in the house. Further defense evidence showed that the defendant did not live at the Rustic Lane address but that he lived with another woman at a separate address. Also evidence was presented that on the night before the raid the other individuals in the house gave a party and a guest left the revolver named in Count IV of the indictment at the house.

* The defendant contends that the district court erred in denying his motion for a judgment of acquittal as to all six counts of the indictment made at the conclusion of both the government's case and again when the defense rested. In reviewing a motion for a judgment of acquittal the evidence and all reasonable inferences from the evidence must be viewed in the light most favorable to the government. If in that light, the evidence is such that a reasonable mind might fairly find guilt beyond a reasonable doubt, the issue is for the jury and the refusal to grant a judgment of acquittal must be sustained. United States v. Collon, 426 F.2d 939 (6th Cir. 1970); United States v. Smith, 399 F.2d 896 (6th Cir. 1968); United States v. Carabbia, 381 F.2d 133 (6th Cir. 1967); United States v. Smith, 343 F.2d 847 (6th Cir. 1965); United States v. Grimes, 332 F.2d 1014 (6th Cir. 1964). This principle, of course, applies to each element of the alleged offense.

Counts I, II and III

Under Counts I, II and III of the indictment the defendant is charged with violating 26 U.S.C. Sec. 5861(d) which states:

It shall be unlawful for any person-

* * *

The government's proof disclosed, and the defendant concedes, that Craven had constructive possession of the Rustic Lane house where the narcotics were found in a secret compartment in the basement stairs. The testimony of Alice Freeman concerning her purchase from the defendant of a white powder in the basement of the house the month before the raid inferentially demonstrated that Craven had access to the basement area where the secret compartment was located. Her testimony also described a conversation she had with Craven after the police raid on the house in which the defendant told her the government did not have a case against him and that he should have moved the "stash" earlier. Although the defendant's use of the word "stash" could refer to the illegal weapons, the narcotics or both, the statement could reasonably be construed to mean the narcotics, especially since the defendant had previously sold this witness a white powder in the basement of the house and had not dealt in firearms with her. Added to these facts, the illegal weapons named in Counts II and III of the indictment were found in the secret compartment with the heroin. We have already determined that the evidence was sufficient to uphold a finding of constructive possession of these firearms. Therefore, we hold that the evidence is sufficient to support the conclusion that Craven had access to and dominion and control over the secret compartment and its contents. The motion for a judgment of acquittal was properly denied on these counts.

II

The defendant attacks the constitutionality of 18 U.S.C. Sec. 922(h)(1)¹³ on several grounds. First, it is said that the classification contained in the statute prohibiting a person under indictment from receiving a firearm shipped in interstate commerce is irrational and unjustified and deprives defendant of due process of law under the Fifth Amendment. Second, it is argued that the statute violates the Fifth Amendment's due process clause because the introduction of an indictment for an offense other than the crime of which the defendant is accused is prejudicial and denies defendant a fair trial.

The defendant's first argument is essentially that Sec. 922(h)(1) segregates those persons who may receive firearms in interstate commerce from those individuals who may not. By including in the second category persons who are merely "under indictment for . . . a crime punishable by imprisonment for a term exceeding one year"¹⁴ Congress has unjustifiably discriminated against indicted persons, who have the same status in the eyes of the law because of the presumption of innocence as persons not involved in the criminal process. Therefore, since both innocent persons and indicted persons have the same legal status no basis exists for the statute's discrimination.

The Fifth Amendment does not contain an explicit equal protection clause as does the Fourteenth Amendment applicable on its face only to the states, but statutory classifications may be so unjustified as to be violative of the due process clause of the Fifth Amendment. Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969); Schneider v. Rusk, 377 U.S. 163, 84 S.Ct. 1187, 12 L.Ed.2d 218 (1964); Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954). Consequently, the due process clause of the Fifth Amendment provides the same basic safeguards as the equal protection clause and the general principles of the latter apply to the former.

It is now well settled that when legislative classifications affect fundamental rights a closer scrutiny of them is required and an overriding or compelling interest must appear to support the legislative classifications. See e. g., Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Kramer v. Union Free School District, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969); Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969); Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968); Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967). However, in dealing with social or economic legislation or areas where fundamental rights are not involved a greater latitude is afforded legislative classifications and a statutory classification will not be set aside if a rational basis exists to sustain it. See, e. g., Hurtado v. United States, 410 U.S. 578, 93 S.Ct. 1157, 35 L.Ed.2d 508 (1973); McGinnis v. Royster, 410 U.S. 263, 93 S.Ct. 1055, 35 L.Ed.2d 282 (1973); Lindsey v. Normet, 405 U.S. 56, 92 S.Ct. 862, 31 L.Ed. 2d 36 (1972); Schilb v. Kuebel, 404 U.S. 357, 92 S.Ct. 479, 30 L.Ed.2d 502 (1971); Dandridge v. Williams, 397 U. S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970); McGowan v. Maryland, 366 U. S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 493 (1961).

In United States v. Thoresen, 428 F.2d 654 (9th Cir. 1970), an opinion with which we fully agree, the Ninth Circuit determined that shipping or transporting firearms in interstate or foreign commerce under the now repealed 15 U.S.C. Sec. 902(e) was not a basic or fundamental right. Although 18 U.S.C. Sec. 922(h)(1) does not proscribe shipping or transporting firearms (see 18 U.S.C. Sec. 922(g)) but instead prohibits receiving firearms in interstate commerce, it follows, a fortiori, from the Thoresen holding that receiving firearms shipped in interstate commerce is not a basic constitutional right. Therefore, 18 U.S.C. Sec. 922(h)(1) must be upheld if the classification scheme has any rational basis to support it.

The Congressional findings and declaration of purpose of Title IV of the Omnibus Crime Control and Safe Streets Act of 1968¹⁵ and the legislative history of this title¹⁶ amply demonstrate the nexus between violent criminal activity and the use of firearms. It was eminently reasonable for Congress to conclude that the indictment of an individual for a crime punishable by imprisonment for a term exceeding one year is so often indicative of a propensity for violence that the indictment classification of 18 U.S.C. Sec. 922(h)(1) was justified in the public interest. Since Title IV of the Act is a modified and more comprehensive version of the Federal Firearms Act of 1938 and its subsequent amendments,¹⁷ what the Ninth Circuit stated in Thoresen concerning this statutory scheme is equally applicable to Sec. 922(h)(1).

Having in mind the objectives of Congress in enacting this legislation, as discussed above, we find no warrant for a judicial determination that the indictment classification effectuated by section 2(e) is so lacking in rationality that it offends due process. . . . [W]e think it not unreasonable for Congress to conclude that there is considerable likelihood that one indicted for such an offense has a propensity to misuse firearms. In so deciding we note that this conclusion by Congress, as crystallized in section 2(e), is not forever conclusive upon a person so indicted. The prohibitory effect of the classification disappears as soon as the indicted person obtains dismissal of the indictment or acquittal on the charge.

. . . While the provision in question does forbid indicted persons from transporting [receiving] firearms in interstate commerce while the indictment is outstanding, the indictment serves only as a temporary block pending disposition of the criminal proceedings in which the indictment was filed. Bearing in mind that we are not dealing with statutory restrictions upon such constitutionality sensitive activities as free speech or the right to vote, we think Congress may, in pursuit of the sound objectives of the legislation, require indicted persons to tolerate this temporary limitation upon their right to transport weapons in interstate commerce. 428 F.2d at 662.

See Williams v. United States, 426 F.2d 253 (9th Cir. 1970); United States v. DePugh, 266 F.Supp. 453 (W.D.Mo. 1967), aff'd, 393 F.2d 367 (8th Cir. 1968).

The defendant's second argument, that this statute violates the due process clause of the Fifth Amendment because the introduction of an indictment of an unproven offense, other than the charge for which the defendant is on trial, is prejudicial and detracts from the presumption of innocence, is also untenable. This same contention was decided adversely to the defendant in United States v. Thoresen, supra, where the Ninth Circuit stated:

[The defendant] came to this criminal trial with a constitutionally-protected presumption of innocence. See Deutch v. United States, 367 U.S. 456, 471, 81 S.Ct. 1587, 6 L.Ed.2d 963 (1961). But section 2(e) [Sec. 922(h)(1)] does not purport to effect the presumption of innocence which cloaks all defendants in federal criminal proceedings. It does not authorize the fact finder at the criminal trial to infer guilt under the Federal Firearms Act [Sec. 922(h)(1)] from the existence of a prior indictment or even to discount the credibility of a witness because of such an indictment. Instead, as applied to [the defendant] it represents nothing more than a Congressional determination that one who is under indictment for crimes . . . ought not to transport [receive] firearms in interstate commerce unless and until the indictment is dismissed or an acquittal is obtained.

There inheres in this determination a Congressional finding that persons under indictment for such offenses may have a propensity for misusing firearms. But it is a legislative finding operative only in formulating a statutory scheme for controlling misuse of firearms. . . . In our opinion, this provision of the statute does not adversely affect the presumption of innocence which prevails at federal criminal trials and which is guaranteed by the due process clause of the Fifth Amendment. 428 F.2d at 661.

We have carefully considered the other contentions raised by the defendant and find them without merit.

Affirmed.