Petitioner, a previously convicted felon, was arrested when the
police found him in possession of another person's revolver that
was reported missing; he reportedly threatened a neighbor with the
revolver, and tried unsuccessfully to sell it. Petitioner was then
indicted on charges of receiving a firearm in violation of 18
U.S.C. § 922(h)(1) and for possessing it in violation of 18
U.S.C.App. § 1202(a)(1). He was convicted in Federal District Court
on both counts and sentenced to consecutive terms of imprisonment
on the respective counts. The Court of Appeals remanded the case to
the District Court with instructions to modify the sentences to
make them concurrent.
Held: Congress did not intend a convicted felon, in
petitioner's position, to be punished under both § 922(h) and §
1202(a)(1). Congress recognized that a felon who receives a firearm
inevitably also possesses it, and therefore did not intend to
subject that person to two convictions for the same criminal act;
the legislative history supports this reading of congressional
intent. While the Government may seek a multiple-count indictment
against a felon for violations of §§ 922(h) and 1202(a)(1)
involving the same weapon where a single act establishes the
receipt and the possession, the defendant may not suffer two
convictions or sentences on that indictment. If the jury returns
guilty verdicts for each count, the trial court should enter
judgment on only one count. The remedy of ordering one of the
sentences to be served concurrently with the other cannot be
squared with Congress' intention. Pp.
470 U. S.
859-865.
734 F.2d 965, vacated and remanded.
BURGER, C.J., delivered the opinion of the Court, in which
BRENNAN, WHITE, BLACKMUN, REHNQUIST, and O'CONNOR, JJ., joined.
MARSHALL, J., concurred in the judgment. STEVENS, J., filed an
opinion concurring in the judgment,
post, p.
470 U. S. 867.
POWELL, J., took no part in the decision of the case.
Page 470 U. S. 857
CHIEF JUSTICE BURGER delivered the opinion of the Court.
We granted certiorari to decide whether a felon possessing a
firearm may be convicted and concurrently sentenced under 18 U.S.C.
§ 922(h)(1) for receiving that firearm, and under 18 U.S.C.App. §
1202(a)(1) for possessing the same weapon. 469 U.S. 816 (1984).
I
After driving around Honaker, Virginia, with several
acquaintances, including petitioner Truman Ball, Hubert Romans
discovered that his .32-caliber nickel-plated Rossi revolver was
missing from the back seat of his car. [
Footnote 1] He reported the incident to the Russell County
Sheriff's Department. Subsequently, a neighbor notified the Sheriff
that Ball had threatened him with a pistol matching the description
of Romans' revolver. Later that same day, the police located Ball
at another neighbor's home where Ball had tried unsuccessfully to
sell the revolver. When the police told Ball he was under arrest,
Ball fled hut was promptly apprehended with Romans' revolver in his
possession.
Ball, a previously convicted felon, [
Footnote 2] was indicted on charges of receiving a firearm
shipped in interstate commerce, 18 U.S.C. §§ 922(h)(1) and 924(a),
and possessing that firearm, 18 U.S.C.App. § 1202(a)(1). [
Footnote 3] It is conceded that both
counts rest on the same conduct. Ball was convicted on both
Page 470 U. S. 858
counts [
Footnote 4] by a
jury in the Western District of Virginia and sentenced to
consecutive terms of three years' imprisonment on the receipt count
and two years' imprisonment on the possession count, the latter
sentence suspended with two years' probation.
On appeal, Ball challenged the validity of the consecutive
sentences. The Government conceded that, under
United States v.
Burton, 629 F.2d 975 (CA4 1980),
cert. denied, 450
U.S. 968 (1981), consecutive sentences could not be imposed for
unlawful receipt and unlawful possession of the same firearm when
the unlawful possession was incident to its unlawful receipt. The
Court of Appeals accepted this concession and adhered to its
statement in
Burton that "Congress in these firearms
statutes created separate offenses, but did not authorize
pyramiding penalties." 734 F.2d 965, 966 (CA4 1984) (citing
Burton, supra, at 977). The Court of Appeals remanded the
case to the District Court with instructions to modify the
sentences to make them concurrent.
The application of the firearms statutes, § 922(h)(1) and §
1202(a)(1), charging a convicted felon with receiving and
possessing the same gun, has produced conflicting decisions among
the Courts of Appeals. [
Footnote
5] We granted certiorari to resolve this conflict. We
reverse.
Page 470 U. S. 859
II
This case requires the Court once again to resolve the "partial
redundancy" of §§ 922(h) and 1202(a), provisions of Titles IV and
VII, respectively, of the Omnibus Crime Control and Safe Streets
Act of 1968.
E.g., United States v. Batchelder,
442 U. S. 114,
442 U. S. 118
(1979);
United States v. Bass, 404 U.
S. 336,
404 U. S.
341-343, and n. 9 (1971). In these two Titles of the
Omnibus Act, Congress sought to control the interstate traffic and
availability of firearms. Although Congress' purposes are obvious,
courts understandably have had difficulty applying the overlapping
provisions of the Act. This case affords an opportunity to address
the application of Titles IV and VII to one set of circumstances --
where a single act is relied upon to establish a convicted felon's
unlawful receipt and his unlawful possession of the same firearm.
[
Footnote 6]
A
It is clear that a convicted felon may be prosecuted
simultaneously for violations of §§ 922(h) and 1202(a) involving
the same firearm. This Court has long acknowledged the Government's
broad discretion to conduct criminal prosecutions, including its
power to select the charges to be brought in a particular case.
E.g., United States v. Goodwin, 457 U.
S. 368,
457 U. S. 382
(1982);
Confiscation
Cases, 7 Wall. 454,
74 U. S.
457-459 (1869).
Page 470 U. S. 860
In
Batchelder, this Court recognized that §§ 922(h) and
1202(a) proscribed similar conduct where the defendant is a
convicted felon, but concluded that
"each substantive statute, in conjunction with its own
sentencing provision, operates independently of the other."
442 U.S. at
442 U. S. 118.
This Court rejected the argument that § 1202(a) impliedly repealed
§ 922(h) with respect to acts covered by both provisions, noting
that both the statutory language and the legislative history showed
that the two provisions were to be applied independently.
See
id. at 118-121. [
Footnote
7] Under these circumstances, there is no bar to the
Government's proceeding with prosecution simultaneously under the
two statutes. [
Footnote 8]
Page 470 U. S. 861
B
To say that a convicted felon may be prosecuted simultaneously
for violation of §§ 922(h) and 1202(a), however, is not to say that
he may be convicted and punished for two offenses. Congress can be
read as allowing charges under two different statutes with
conviction and sentence confined to one. Indeed, "[a]ll guides to
legislative intent,"
United States v. Woodward,
469 U. S. 105,
469 U. S. 109
(1985), show that Congress intended a felon in Ball's position to
be convicted and punished for only one of the two offenses if the
possession of the firearm is incidental to receiving it.
This Court has consistently relied on the test of statutory
construction stated in
Blockburger v. United States,
284 U. S. 299,
284 U. S. 304
(1932), to determine whether Congress intended the same conduct to
be punishable under two criminal provisions. The appropriate
inquiry under
Blockburger is "whether each provision
requires proof of a fact which the other does not."
See, e.g.,
United States v. Woodward, supra, at
469 U. S. 107;
Albernaz v. United States, 450 U.
S. 333,
450 U. S. 337
(1981);
Whalen v. United States, 445 U.
S. 684,
445 U. S.
691-692 (1980). The assumption underlying the
Blockburger rule is that Congress ordinarily does not
intend to punish the same offense under two different statutes.
For purposes of applying the
Blockburger test in this
setting as a means of ascertaining congressional intent,
"punishment" must be the equivalent of a criminal conviction, and
not simply the imposition of sentence. Congress could not have
intended to allow two convictions for the same conduct, even if
sentenced under only one; Congress does not create criminal
offenses having no sentencing component.
See United
States v. Hudson & Goodwin, 7 Cranch 32,
11 U. S. 34 (1812);
Tennessee v. Davis, 100 U. S. 257,
100 U. S. 275
(1880) (Clifford, J., dissenting).
Page 470 U. S. 862
Cf. Fed.Rule Crim.Proc. 32(b)(1), which provides that
the sentence is a necessary component of a "judgment of
conviction."
Applying this rule to the firearms statutes, it is clear that
Congress did not intend to subject felons to two convictions; proof
of illegal receipt of a firearm necessarily includes proof of
illegal possession of that weapon. "[W]hen received, a firearm is
necessarily possessed."
United States v. Martin, 732 F.2d
591, 592 (CA7 1984). [
Footnote
9] In other words, Congress seems clearly to have recognized
that a felon who receives a firearm must also possess it, and thus
had no intention of subjecting that person to two convictions for
the same criminal act.
The legislative history of §§ 922(h) and 1202(a) supports this
reading of congressional intent. Titles IV and VII, enacted
together as components of the Omnibus Act, [
Footnote 10] disclose
"Congress' worry about the easy availability of firearms,
especially to those persons who pose a threat to community
peace."
Lewis v. United States, 445 U. S.
55,
445 U. S. 66
(1980). Accordingly, "[e]ach [Title] seeks to keep a firearm from
any person . . . who has been convicted' of a felony. . . ."
Id. at 445 U. S.
64.
Section 922(h), the receipt statute, is part of a "
carefully
constructed package of gun control legislation,' which had been in
existence for many years." Batchelder, 442 U.S.
at
Page 470 U. S. 863
442 U. S. 120
(quoting
Scarborough v. United States, 431 U.
S. 563,
431 U. S. 570
(1977)). [
Footnote 11] One
principal purpose of Title IV was to make
"it possible to keep firearms out of the hands of those not
legally entitled to possess them because of age, criminal
background, or incompetency. . . ."
S.Rep. No. 1097, 90th Cong., 2d Sess., 28 (1968).
Section 1202(a), on the other hand, was a "last-minute Senate
amendment" to the Omnibus Act, "hastily passed, with little
discussion, no hearings, and no report."
United States v.
Bass, 404 U.S. at
404 U. S. 344
(footnote omitted). The circumstances surrounding consideration of
Title VII and the haste in which it was enacted may well explain
why it does not dovetail neatly with the prohibition that was, at
the time of its passage, already contained in Title IV. [
Footnote 12] Title VII was enacted
as supplementary legislation; Title VII filled the gaps in and
expanded the coverage of Title IV. [
Footnote 13] In short,
Page 470 U. S. 864
we are persuaded that Congress had no intention of creating
duplicative punishment for one limited class of persons falling
within the overlap between the two Titles -- convicted felons who
receive firearms and who, by definition, possess them. The
independent but overlapping statutes simply are not "directed to
separate evils" under the circumstances.
Albernaz, 450
U.S. at
450 U. S. 343.
[
Footnote 14]
C
Having concluded that Congress did not intend petitioner's
conduct to be punishable under both §§ 922(h) and 1202(a), the only
remedy consistent with the congressional intent is for the District
Court, where the sentencing responsibility resides, to exercise its
discretion to vacate one of the underlying convictions. The remedy
of ordering one of the sentences to be served concurrently with the
other cannot be squared with Congress' intention. One of the
convictions, as well as its concurrent sentence, is unauthorized
punishment for a separate offense.
See Missouri v. Hunter,
459 U. S. 359,
459 U. S. 368
(1983).
The second conviction, whose concomitant sentence is served
concurrently, does not evaporate simply because of
Page 470 U. S. 865
the concurrence of the sentence. The separate
conviction, apart from the concurrent sentence, has
potential adverse collateral consequences that may not be ignored.
For example, the presence of two convictions on the record may
delay the defendant's eligibility for parole or result in an
increased sentence under a recidivist statute for a future offense.
Moreover, the second conviction may be used to impeach the
defendant's credibility, and certainly carries the societal stigma
accompanying any criminal conviction.
See Benton v.
Maryland, 395 U. S. 784,
395 U. S.
790-791 (1969);
Sibron v. New York,
392 U. S. 40,
392 U. S. 54-56
(1968). Thus, the second conviction, even if it results in no
greater sentence, is an impermissible punishment.
We emphasize that, while the Government may seek a
multiple-count indictment against a felon for violations of §§
922(h) and 1202(a) involving the same weapon where a single act
establishes the receipt and possession, the accused may not suffer
two convictions or sentences on that indictment. If, upon the
trial, the district judge is satisfied that there is sufficient
proof to go to the jury on both counts, he should instruct the jury
as to the elements of each offense. Should the jury return guilty
verdicts for each count, however, the district judge should enter
judgment on only one of the statutory offenses.
III
We hold that Congress did not intend a convicted felon in Ball's
position to be convicted of both receiving a firearm in violation
of 18 U.S.C. § 922(h) and possessing that firearm in violation of
18 U.S.C.App. § 1202(a). Accordingly, we vacate the judgment of the
Court of Appeals and remand with instructions to have the District
Court exercise its discretion to vacate one of the convictions.
It is so ordered.
JUSTICE MARSHALL concurs in the judgment.
JUSTICE POWELL took no part in the decision of this case.
Page 470 U. S. 866
APPENDIX TO OPINION OF THE COURT
Title 18 U.S.C. § 922(h) provides:
"It shall be unlawful for any person -- "
"(1) who is under indictment for, or who has been convicted in
any court of, a crime punishable by imprisonment for a term
exceeding one year;"
"(2) is a fugitive from justice;"
"(3) is an unlawful user of or addicted to marihuana or any
depressant or stimulant drug (as defined in section 201(v) of the
Federal Food, Drug, and Cosmetic Act) or narcotic drug (as defined
in section 4731(a) of the Internal Revenue Code of 1954); or"
"(4) has been adjudicated as a mental defective or has been
committed to any mental institution;"
"to receive any firearm or ammunition which has been shipped or
transported in interstate or foreign commerce."
Title 18 U.S.C. § 924(a) provides in pertinent part:
"Whoever violates any provision of this chapter . . . shall be
fined not more than $5,000, or imprisoned not more than five years,
or both, and shall become eligible for parole as the Board of
Parole shall determine."
Title 18 U.S.C.App. § 1202(a) provides:
"Any person who -- "
"(1) has been convicted by a court of the United States or of a
State or any political subdivision thereof of a felony, or"
"(2) has been discharged from the Armed Forces under
dishonorable conditions, or"
"(3) has been adjudged by a court of the United States or of a
State or any political subdivision thereof of being mentally
incompetent, or"
"(4) having been a citizen of the United States has renounced
his citizenship, or"
"(5) being an alien is illegally or unlawfully in the United
States,"
"and who receives, possesses, or transports in commerce or
affecting commerce, after the date of enactment of this
Page 470 U. S. 867
Act, any firearm shall be fined not more than $10,000 or
imprisoned for not more than two years, or both."
[
Footnote 1]
In October 1981, Elliot Brothers of South Carolina had shipped
the revolver to McGlothlin's Store in Honaker, Virginia. On
February 22, 1982, McGlothlin sold the gun to Romans.
[
Footnote 2]
At the outset of the trial, the parties stipulated that Ball
previously had been convicted of the state felony of threatening a
dwelling house. App. 2-3.
[
Footnote 3]
See Appendix to this opinion for the complete texts of
the relevant statutes.
[
Footnote 4]
The chain of sale described in
n 1,
supra, established the interstate commerce
connection required by the firearms statutes.
See Barrett v.
United States, 423 U. S. 212
(1976);
Scarborough v. United States, 431 U.
S. 563 (1977).
[
Footnote 5]
The Tenth Circuit has held that a convicted felon may be
convicted and sentenced cumulatively under both statutes.
United States v. Larranaga, 614 F.2d 239, 241 (1980). The
Fifth, Ninth, and District of Columbia Circuits have concluded that
the Government must elect to prosecute a convicted felon under one
of the statutes.
United States v. Larson, 625 F.2d 67, 69
(CA5 1980);
United States v. Conn, 716 F.2d 550, 553 (CA9
1983);
United States v. Girst, 207 App.D.C. 89, 92, 645
F.2d 1014, 1017 (1979). The Fourth Circuit has decided that a
convicted felon may be convicted under both statutes, but the
separate sentences must run concurrently.
United States v.
Burton, 629 F.2d 975, 977-978 (1980). The Third and Seventh
Circuits have remanded cases to the District Courts in order to
vacate one of the convictions and sentences.
United States v.
Taylor, 635 F.2d 232, 233 (CA3 1980);
United States v.
Martin, 732 F.2d 591, 593 (CA7 1984).
[
Footnote 6]
We have no occasion to consider here whether a felon may be
convicted of both offenses if he possessed a firearm on one
occasion and, after giving up possession, later reacquired the gun,
see, e.g., United States v. Robbins, 579 F.2d 1151 (CA9
1978), or if he received and possessed different weapons at
different times or in various places,
see, e.g., United States
v. Vance, 724 F.2d 517 (CA6 1983);
United States v.
Filipponio, 702 F.2d 664 (CA7 1983).
[
Footnote 7]
Several Courts of Appeals have interpreted
Batchelder
to forbid the Government to proceed against a convicted felon in a
single prosecution under §§ 922(h) and 1202(a).
See, e.g.,
United States v. Larson, supra; United States v. Girst, supra;
United States v. Conn, supra. These courts have relied upon
the statement in
Batchelder that
"when an act violates more than one criminal statute, the
Government may prosecute under either, so long as it does not
discriminate against any class of defendants,"
442 U.S. at
442 U. S.
123-124, interpreting the reference to "either" statute
to require the Government to proceed under only one of the two
provisions. The Court's observation was a response to the claim
that the two statutes permitted excessive prosecutorial discretion
because the Government could, in effect, choose the penalty to
apply in a given case by proceeding under one statute instead of
the other. The Court's reference to "either" statute merely
reaffirmed the Government's discretion to charge under one statute
rather than the other. The Court had no intention of restricting
the Government to prosecuting for only a single offense, an issue
not before the Court. This is confirmed by
Batchelder's
conclusion that the two statutes are "each fully enforceable on
[their] own terms."
Id. at
442 U. S.
119.
Given this congressional design, the Double Jeopardy Clause
imposes no prohibition to simultaneous prosecutions. In
Ohio v.
Johnson, 467 U. S. 493
(1984), this Court held that even where the Clause bars cumulative
punishment for a group of offenses,
"the Clause does not prohibit the State from prosecuting [the
defendant] for such multiple offenses in a single prosecution."
Id. at
467 U. S.
500.
[
Footnote 8]
Indeed, in
United States v. Gaddis, 424 U.
S. 544 (1976), the Court concluded that "there can be no
impropriety . . . for a prosecutor to file an information
containing counts charging violations of" several different
provisions of the federal bank robbery statute where there is
evidence to support the charges, even though the defendant could
not in the end stand convicted of both offenses.
Id. at
424 U. S.
550.
[
Footnote 9]
As the Government suggests, the converse may not be true. For
example, a felon may possess a firearm without having "received"
it; he may have manufactured the gun himself. Brief for United
States 13-14.
[
Footnote 10]
Four months after enacting the Omnibus Act, the same Congress
amended and reenacted Titles IV and VII as part of the Gun Control
Act of 1968. 82 Stat. 1213. Congress renewed its effort to prohibit
felons from having weapons.
See, e.g., S.Rep. No. 1501,
90th Cong., 2d Sess., 22 (1968); 114 Cong.Rec. 21784 (1968)
(remarks of Rep. Celler). As the Court observed in
Barrett v.
United States, 423 U.S. at
423 U. S. 220,
the Gun Control Act
"reflects a similar concern with keeping firearms out of the
hands of categories of potentially irresponsible persons, including
convicted felons."
[
Footnote 11]
Section 922(h) stemmed from § 2(f) of the Federal Firearms Act
of 1938, which had made it unlawful for
"any person who has been convicted of a crime of violence or is
a fugutive [
sic] from justice to receive any firearm or
ammunition which has been shipped or transported in interstate or
foreign commerce . . . ,"
52 Stat. 1251. Section 922(h), although maintaining § 2(f)'s
operative phrase, expanded the categories of persons prohibited
from receiving firearms.
See Appendix to this opinion.
[
Footnote 12]
Senator Tydings, for example, explained that "Title VII . . . is
. . . primarily designed to restrict access to handguns to
criminals, juveniles, and fugitives." 114 Cong.Rec. 13639 (1968).
See also id. at 13868, 14773 (remarks of Sen. Long). For a
concise review of Title VII's surprisingly swift passage through
the Congress,
see Scarborough v. United States,
431 U. S. 563,
431 U. S.
573-574 (1977);
United States v. Bass,
404 U. S. 336,
404 U. S. 344,
n. 11 (1971).
[
Footnote 13]
Each statute reaches substantial groups of people not covered by
the other. Section 922(h), for example, covers persons who are
under indictment for a felony, who are fugitives, and who are
narcotics offenders. Section 1202(a), on the other hand, covers
persons dishonorably discharged from the service, illegal aliens,
and persons who have renounced their citizenship. Senator Long
explained that the assortment of persons brought within the ambit
of § 1202(a) reflected those responsible for the rash of
assassinations and publicized murders in "recent history," which
included the deaths of President Kennedy and Martin Luther King,
Jr., as well as the murders of several civil rights workers in the
South. 114 Cong.Rec. 14773 (1968). Only two groups -- convicted
felons and adjudicated mental incompetents -- fall within the
overlap between the two provisions. There is no suggestion in the
legislative history that these persons pose a greater threat to
society such that Congress thought they deserved to be punished
more severely,
i.e., under both statutes for a single
act.
[
Footnote 14]
This appears to be the import of the Government's concession in
Taylor v. United States, 624 F.2d 1092 (CA3),
vacated
and remanded, 449 U.S. 895 (1980), where the petitioner's
consecutive sentences for violating §§ 922(h) and 1202(a) had been
upheld by the Court of Appeals under circumstances identical to
those presented in this case. Before this Court, the Government
acknowledged that,
"since receipt of a firearm will almost necessarily entail
possession of that firearm, . . . we agree with petitioner that it
is unlikely that Congress intended to permit consecutive punishment
in the circumstances presented here."
Memorandum for United States in
Taylor v. United
States, O.T. 1980, No. 80-5187, pp. 2-3.
JUSTICE STEVENS, concurring in the judgment.
The Court correctly holds that petitioner's conduct may support
a conviction under either § 922(h)(1) or § 1202(a)(1), but not
both. In reaching that conclusion, the Court unnecessarily
volunteers the opinion that "there is no bar to the Government's
proceeding with prosecution simultaneously under the two statutes."
Ante at
470 U. S. 860;
see also ante at
470 U. S. 859.
Even if that opinion were well founded, I see no reason why this
Court should go out of its way to encourage prosecutors to tilt the
scales of justice against the defendant by employing such
tactics.
The views that JUSTICE MARSHALL expressed in his dissent in
Missouri v. Hunter, 459 U. S. 359,
459 U. S.
371-372 (1983), succinctly explain why I concur in the
Court's judgment today:
"[T]he entry of two convictions and the imposition of two
sentences cannot be justified on the ground that the legislature
could have simply created one crime but prescribed harsher
punishment for that crime. This argument incorrectly assumes that
the total sentence imposed is all that matters, and that the number
of convictions that can be obtained is of no relevance to the
concerns underlying the Double Jeopardy Clause."
"When multiple charges are brought, the defendant is 'put in
jeopardy' as to each charge. To retain his freedom, the defendant
must obtain an acquittal on all charges; to put the defendant in
prison, the prosecution need only obtain a single guilty verdict.
The prosecution's ability to bring multiple charges increases the
risk that the defendant will be convicted on one or more of those
charges. The very fact that a defendant has been arrested, charged,
and brought to trial on several charges may suggest to the jury
that he must be guilty
Page 470 U. S. 868
of at least one of those crimes. Moreover, where the
prosecution's evidence is weak, its ability to bring multiple
charges may substantially enhance the possibility that, even though
innocent, the defendant may be found guilty on one or more charges
as a result of a compromise verdict. The submission of two charges,
rather than one, gives the prosecution"
"the advantage of offering the jury a choice -- a situation
which is apt to induce a doubtful jury to find the defendant guilty
of the less serious offense, rather than to continue the debate as
to his innocence."
"
Cichos v. Indiana, 385 U. S. 76,
385 U. S.
81 (1966) (Fortas, J., dissenting from dismissal of
certiorari).
*"
Accordingly, I concur in the judgment.
* The following footnote is appended to the quoted passage:
"It is true that compromise is possible even under the familiar
procedure whereby a lesser included offense is submitted along with
a greater offense and the jury is told that it can convict on only
one charge. Under the usual procedure, however, the risk of an
irrational compromise is reduced by the rule that a lesser included
offense will not be submitted to the jury if the element that
distinguishes the two offenses is not in dispute.
See, e.g.,
Sansone v. United States, 380 U. S. 343 (1965);
United
States v. Tsanas, 572 F.2d 340, 345-346 (CA2),
cert.
denied, 435 U.S. 995 (1978)."
459 U.S. at
459 U. S. 372,
n. 4 (MARSHALL, J., dissenting).