7th Circuit rules firearm statute is constitutional.

Byline: David Ziemer

In a prosecution for sale of a firearm to a felon, in violation of 18 U.S.C. 922(d), the government need not prove the defendant knew the nature of the recipient's conviction, even though it was included in the indictment, the Seventh Circuit held on Dec. 26.The court also issued dicta suggesting the statute does not exceed Congress' constitutional powers under the Commerce Clause.

The defendant, Dwayne Haskins, worked as a security guard, along with Darryl Eller, at a nightclub in Gary, Indiana. Haskins had a license to carry a firearm, but Eller had a 1993 felony conviction.

In 2003, Gary police arrived at the club and arrested individuals who possessed drugs and firearms, confiscating guns from both Haskins and Eller. They returned Haskins' gun to him, and mistakenly, gave him Eller's gun, as well. As Haskins described it, he accepted the weapon, not being one to look a gift horse in the mouth.

Eller, however, later began cooperating with the FBI, and purchased his own gun back from Haskins for $440.

Haskins was then charged in federal court, and convicted of selling a firearm to a felon. He appealed, but the Seventh Circuit affirmed, in a decision by Judge Ilana Diamond Rovner.

Indictment

The indictment made specific reference to the 1993 conviction, but at trial, the government only presented evidence that Haskins knew generally that Eller had a felony conviction. It did not present evidence that he knew specifically about the 1993 conviction.

At trial, and on appeal after conviction, Haskins argued that the conviction constituted impermissible constructive amendment of the indictment, citing U.S. v. Willoughby, 27 F.3d 263 (7th Cir. 1994), for support.

In Willoughby, the defendant was charged with using a firearm in relation to a drug distribution crime that was specifically referenced in the indictment. The Seventh Circuit reversed the conviction, because, at trial, the government proved only possession, not distribution.

However, the Seventh Circuit distinguished Willoughby in Haskins' case, because sec. 922(d) only requires that the defendant knew the firearm recipient was a felon. In contrast, in Willoughby, the statute required proof a drug trafficking crime. While the indictment specified a particular drug trafficking crime, the evidence supported only possession.

The court thus concluded that the inclusion of Eller's 1993 conviction in the indictment was merely superfluous background information, and distinguished Willoughby.

Commerce Clause

The court also issued dicta, suggesting that it is unnecessary for the government to present evidence that a firearm traveled in...