453 F2d 397 United States v. Catalano

453 F.2d 397

UNITED STATES of America, Appellee,
Michael Vincent CATALANO, Appellant.

No. 607, Docket 35628.

United States Court of Appeals,
Second Circuit.

Submitted Jan. 29, 1971.
Decided Dec. 28, 1971.

Milton J. Carp, Sp. Atty., Dept. of Justice, Whitney North Seymour, Jr., U. S. Atty., Ross Sandler, Asst. U. S. Atty., for appellee.

Joseph Panzer, New York City, for appellant.

Before WATERMAN, MOORE and FEINBERG, Circuit Judges.


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Appellant was convicted below of having violated 18 U.S.C. (Appendix) Sec. 1202(a), 1970 Ed., Vol. IV, p. 4474.1 The Government proved that appellant had been convicted of a felony and that in his home he possessed two firearms, a .38 caliber Smith and Wesson Special Revolver and a .25 caliber Browning Automatic Pistol. Appellant did not deny the government proof but contended the statute as it applied to him is unconstitutional. He relied upon our decision in the quite similar case of United States v. Bass, 434 F.2d 1296 (2 Cir. 1970), wherein we stated that the statute required the Government to show that the firearms which the defendant possessed were received, possessed, or transported in commerce or affected commerce, a showing that was not made there, or made here.


The Government obtained United States Supreme Court review of our decision and the decision has been affirmed. The present case having remained undecided awaiting the guidance now received, we reverse the judgment below. United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 decided Dec. 20, 1971.


The statute, which is a part of Title VII of the Omnibus Crime Control and Safe Streets Act of 1968, provides:

Any person who * * * has been convicted by a court of the United States or of a State or any political subdivision thereof of a felony, * * * and who receives, possesses, or transports in commerce or affecting commerce, after the date of enactment of this Act, any firearm shall be fined not more than $10,000 or imprisoned for not more than two years, or both.