Mark Schaffer, Defender Association of Philadelphia, Philadelphia, Pa., for appellant.

J. Clayton Undercofler, Asst. U. S. Atty., Philadelphia, Pa., for appellee.

Before ADAMS and JAMES ROSEN, Circuit Judges, and STAPLETON, District Judge.OPINION OF THE COURT

STAPLETON, District Judge.

Appellant, Harry Weiler, was found guilty of violating Section 922(g) (1) of Title 18 of the United States Code, and was sentenced to two years probation and fined $500.00. Section 922(g) (1) provides:

"(g) 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;

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to ship or transport any firearm or ammunition in interstate or foreign commerce."

Weiler stipulated below that he had previously been convicted of a crime punishable by imprisonment for a term exceeding one year. There was ample evidence to support the jury's conclusion that Weiler transported a hand gun from New Jersey to Pennsylvania on February 9, 1970. Weiler maintains, however, that his conviction must be overturned because the court failed to instruct the jury that the prosecution had the burden of proving beyond a reasonable doubt that he "had knowledge or probability of knowledge of the provisions of Section 922(g) (1) and of its applicability to him." Weiler asserts that the statute, properly construed, as well as the Due Process Clause of the Fifth Amendment of the United States Constitution require that the prosecution shoulder this burden.

At trial the defendant requested, but the court refused to give, instructions to the effect that the prosecution had the burden of proving beyond a reasonable doubt (1) that the defendant "knew that he had been convicted of a crime for which he could be imprisoned for one year or more," and (2) that he "knew that the firearm in question was capable of ejecting a projectile."1 The court did, however, instruct the jury (1) that the prosecution was required to prove beyond a reasonable doubt the defendant "intentionally" committed the act prohibited by the statute, (2) that a person ordinarily intends the natural and probable consequences of acts knowingly done or knowingly omitted and (3) that an act or failure to act is knowingly done if done voluntarily and not because of mistake or accident. The defendant did not request, and the court did not give, an instruction that the government had the burden of proving beyond a reasonable doubt that the defendant knew his acts were unlawful or otherwise wrongful.

At trial the defendant, although he testified and produced other evidence in his behalf, did not tender any evidence (1) that he did not know he had been convicted of a crime punishable by a year's imprisonment, (2) that he did not know that the gun was capable of expelling a projectile,2 or (3) that he did not know that it was unlawful for him to transport a gun in interstate commerce.

The court below properly refused the two requested instructions. The court did charge that general criminal intent, an intent to do the act which the statute makes unlawful, was required. The general instruction with respect to intent and mistake or accident was all the defendant was entitled to on this point in the absence of any evidence supporting the particularized theories contained in the two requested instructions. United States v. Levinson, 405 F.2d 971 (6th Cir. 1968); United States v. Kahn, 381 F.2d 824 (7th Cir. 1967); Johnson v. United States, 370 F.2d 495 (9th Cir. 1966); Axelbank v. United States, 88 U.S.App.D.C. 147, 189 F.2d 18 (1951).

With respect to appellant's third point, which he stresses on this appeal, evidence was introduced during the trial from which the jury could have concluded that Weiler knew that his conduct was unlawful. The court's charge, however, did not put this issue squarely to the jury.3 Since the failure to charge on this point would be "plain error" if defendant were right in his contention that specific criminal intent is an essential element of Section 922(g) (1), we must proceed to analyze defendant's argument regarding that statute and the Constitution. United States v. Byrd, 352 F.2d 570 (2nd Cir. 1965).

Section 922(g) (1) of the Gun Control Act4 does not on its face proscribe any particular state of mind as an element of the offense. Appellant concedes this, but suggests that we should read into the statute the common law concept of an "evil state of mind" and hold that this casts upon the government the burden of proving knowledge on the defendant's part of the unlawfulness of his acts. He relies in this regard on Morissette v. United States, 342 U.S. 246, 72 S. Ct. 240, 96 L. Ed. 288 (1952).

The defendant in the Morissette case had been convicted of violating a federal statute making it a crime to embezzle, steal, purloin or knowingly convert to one's own use any "thing of value of the United States."5 He tendered testimony that he took the shell casings involved only because he thought they were abandoned and with no wrongful or criminal intent.6 The Supreme Court reversed, noting that the courts "have consistently retained the requirement of [specific criminal] intent in larceny-type cases," and concluding:

"Congress, therefore, omitted any express prescription of criminal intent from the enactment before us in the light of an unbroken course of judicial decision in all constituent states of the Union holding intent inherent in this class of offense, even when not expressed in a statute. Congressional silence as to mental elements in an Act merely adopting into federal statutory law a concept of crime already so well defined in common law and statutory interpretation by the states may warrant quite contrary inferences than the same silence in creating an offense new to general law, for whose definition the courts have no guidance except the Act. Because the offenses before this Court in the Balint and Behrman cases were of this latter class, we cannot accept them as authority for eliminating intent from offenses incorporated from the common law. . . .

. . . [W]here Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed. In such case, absence of contrary direction may be taken as satisfaction with widely accepted definitions, not as a departure from them." 342 U.S. at 261-263, 72 S.Ct. at 249.

Because Section 922(g) (1) of the Gun Control Act does not borrow such "terms of art" or adopt a concept of crime already well defined in common law, we conclude that the present case falls in the same category as United States v. Behrman, 258 U.S. 280, 42 S. Ct. 303, 66 L. Ed. 619 (1922) and United States v. Balint, 258 U.S. 250, 42 S. Ct. 301, 66 L. Ed. 604 (1922) and that the Act itself must provide the guidance necessary to resolve the issue before us.

The Gun Control Act creates a comprehensive and detailed plan for regulating the conduct of various categories of persons with respect to firearms. Various sections apply to licensed manufacturers, licensed dealers, common carriers, felons, drug addicts, mental defectives and individuals generally. In contrast to the provisions of Section 922(g) (1), Congress specified in numerous sections of the Act that a particular state of mind with respect to knowledge of fact and/or law was necessary before a regulated individual might be convicted of the offenses proscribed.7 In this context, we cannot attribute to inadvertence the failure of Congress to address itself to state of mind in Section 922(g) (1).8

In short, we construe Section 922(g) (1) as a Congressional determination (1) that the transportation of firearms in interstate commerce by persons previously convicted of, or charged with, serious crime presents a serious hazard to the public welfare without regard to whether the one doing the transporting knows of the Gun Control Act, and (2) that criminal sanctions are an appropriate way to cope with the problem.9 It is not our function to blunt or frustrate the thrust of this Congressional effort in the field of gun control unless the statute trespasses upon constitutionally protected territory. Accordingly, we turn to appellant's argument that Section 922(g) (1), construed as we have done, violates the Due Process Clause of the Fifth Amendment of the United States Constitution.

Appellant does not contest the power of Congress generally to create a criminal offense which does not require specific criminal intent as a prerequisite to conviction. He suggests, however, that this particular statute falls within a class prohibited by the Supreme Court's decision in Lambert v. California, 355 U.S. 225, 78 S. Ct. 240, 2 L. Ed. 2d 228 (1957).

In that case, the appellant had been convicted of violating a Los Angeles city ordinance which made it unlawful for "any convicted person" to be or remain in Los Angeles for a period of more than five days without registering with the police. The court assumed "that appellant had no actual knowledge of the requirement that she register under this ordinance, as she offered proof of this defense which was refused." 355 U.S. at 227, 78 S.Ct. at 242. The question, accordingly, was "whether a registration act of this character violates due process where it is applied to a person who has no actual knowledge of his duty to register, and where no showing is made of the probability of such knowledge." 355 U.S. at 227, 78 S. Ct. at 242. The Court answered this question in the affirmative.

Justice Douglas, writing for the majority, analyzed the problem as follows: