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458 F.2d 951

Docket No. 71-1378.

United States v. Bowdach

Fifth Circuit Court of Appeals

Decided April 19, 1972.

Rehearing and Rehearing En Banc Denied June 28, 1972.

Fifth Circuit Court of Appeals · decided 1972-04-19

2 counsel of record

Applies 26 U.S.C. § 5861 (§ 201 of the Gun Control Act of 1968)

Relies on United States v. Bass · United States v. Freed · United States v. Drew

Good law ✅— No negative treatment on recordhow we know

Opinion by (per_curiam) · Decided 1972-04-19

How this case has been cited

Cited by 10 later decisions — most recently July 1990

9 federal appellate ·

60197219801990decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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¶1*952Daniel S. Pearson, Miami, Fla. (Court appointed), Pearson & Josefsberg, P. A., Miami, Fla., for appellant Gary Bowdach.

¶2Robert W. Rust, U. S. Atty., Miami, Fla., Sidney M. Glazer, Criminal Div., Appellate Section, Ann Wallace, John J. Robinson, Attys., Henry E. Petersen, Acting Asst. Atty. Gen., Criminal Div., U. S. Dept. of Justice, Washington, D. C., James H. Walsh, Sp. Atty., Criminal Div. U. S. Dept. of Justice, Tampa, Fla., for plaintiff-appellee.

¶3Before TUTTLE, GEWIN and THORNBERRY, Circuit Judges.

¶4PER CURIAM:

¶5Appellant was convicted on all four counts of an indictment charging violations of 18 U.S.C. App. Section 1202(a) and 26 U.S.C. Sections 5861 and 5871. Counts One and Two charged him with the willful and knowing possession of two automatic pistols after having been convicted of a felony in violation of 18 U.S.C. App. 1202(a) (1). The third and fourth counts, respectively, charged him with possession of another firearm, commonly known as a silencer, which had not been registered as required by 26 U.S.C. Section 5861(d) and which was not identified by serial number in violation of 26 U.S.C. Section 5861 (i). We reverse appellant’s convictions under the first two counts and affirm as to counts Three and Four.

¶6The Supreme Court's recent decision in United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971), which was decided after this appeal was brought, is dispositive of the issues raised with respect to Counts One and Two. In Bass the Court held that in order to procure a conviction under 18 U.S.C. App. 1202(a) (1)1 the government must show a nexus between the firearm in question and interstate'commerce. In the instant case the indictment did not allege and the government made no attempt to show that the firearms involved had been possessed “in commerce or affecting commerce.” Therefore, appellant’s convictions under Counts One and Two, in light of the Bass decision must be reversed.

¶7As to the remaining counts, appellant contends that the provisions of the National Firearms Act which require that firearms be registered and that they bear a serial number violate his privilege against self-incrimination · Case Law">Fifth Amendment privilege against self-incrimination. This contention is without merit. United States v. Freed, 401 U.S. 601, 91 S.Ct. 1112, 28 L.Ed.2d 356 (1971).

¶8Appellant urges further that the firearms, the possession of which led to his conviction, were the fruits of an illegal search and should therefore have been suppressed. We do not agree. We conclude that under the teachings of United States v. Drew, (5 Cir. 1971) 451 F.2d 230, the evidence was admissible.

¶9The judgments of conviction under Counts One and Two are reversed, those under Counts Three and Four are affirmed.

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