456 F2d 62 United States v. Harris

456 F.2d 62

UNITED STATES, Appellee,
v.
Ulysses HARRIS, Appellant.

No. 72-1004.

United States Court of Appeals,
Eighth Circuit.

Feb. 29, 1972.

Daniel P. Reardon, St. Louis, Mo., made appearance for appellant in this Court but did not file brief for him.

No appearance or brief were filed by appellee.

Before VAN OOSTERHOUT and GIBSON, Circuit Judges.

PER CURIAM.

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1

Defendant Harris has taken a timely appeal from his conviction by a jury and resulting sentence imposed on a charge of possession of a firearm after having been convicted of a felony in violation of 18 U.S.C. Appendix Sec. 1202(a). This case is before the administrative panel of this court on defendant's motion filed February 4, 1972, to reverse his conviction and remand with directions on the ground that no connection between the possession of the gun with interstate commerce has been alleged. No response has been filed by the Government.

2

The indictment contains no allegation that the possession of the firearm was in or affected interstate commerce. Defendant filed a timely motion to dismiss the indictment before trial based upon the same ground here urged. Such motion was overruled.

3

Since the trial of this case the issue presented by this appeal has been determined in favor of the defendant by the Supreme Court in United States v. Bass, decided December 20, 1971, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488. This court has reversed a similar charge based on a different firearm against the defendant. United States v. Harris, 8 Cir., December 29, 1971, 453 F.2d 857. Such authorities require a reversal of the present conviction.

4

Defendant's motion for summary reversal is sustained. The judgment of conviction is reversed. The case is remanded to the District Court for further proceedings consistent with the view expressed in this opinion.

5

Let mandate issue forthwith.