This case presents two issues: (1) whether a felon who steals a firearm may be convicted of "receiving" a firearm under 18 U.S.C. App. § 1202(a)(1), and (2) whether the district court properly refused to invoke the Dangerous Special Offenders Act, 18 U.S.C. § 3575, for failure of the government to give adequate notice. We answer both in the affirmative and affirm.

On November 4, 1972, defendant was wanted for questioning by the police in Kansas City, Missouri. When he was stopped, he was searched and a .357 caliber revolver was found in his clothing. At that time he was arrested and charged by state authorities with carrying a concealed weapon. Some two years later, on February 3, 1974, he was again arrested in Kansas City, this time for questioning in connection with the death of his common law wife. On this occasion he was in possession of a .38 caliber revolver. On April 4, 1974, he was indicted by a federal grand jury on two counts of violating 18 U.S.C. App. § 1202(a)(1).1 He was eventually convicted and sentenced to two consecutive two-year prison terms.

At his trial, Kelly admitted possession of the firearms and filed a stipulation stating that he had acquired both by theft in the Kansas City area. By his stipulation, the defendant hoped to benefit from the differing burdens of proof established by the Supreme Court in United States v. Bass, 404 U.S. 336, 92 S. Ct. 515, 30 L. Ed. 2d 488 (1971).

In Bass, the Court held that for possession of a firearm by a felon to violate § 1202(a)(1), it must be proven that the weapon was either in interstate commerce at the time or that it had a direct effect upon it. The Court also observed:

Significantly broader in reach, however, is the offense of "receiv(ing) . . . in commerce or affecting commerce," for we conclude that the government meets its burden here if it demonstrates that the firearm received has previously traveled in interstate commerce. (Emphasis added.)

404 U.S. at 350, 92 S. Ct. at 524.

In the present case the government proved that both weapons had at one time traveled in interstate commerce and the burden established in Bass for a receiving charge was clearly met. It could not, however, have sustained a possession charge by the proof offered. Defendant urges that receiving under § 1202(a) requires a willing transfer by one party and a willing acceptance by the other and therefore a person who steals a firearm can only be prosecuted for possession. He contends the government is simply seeking to lighten its burden of proof by charging receiving rather than possession,2 and that to allow a receiving charge in this case would be to permit the government to treat receiving and possession under § 1202(a) as synonymous, contrary to the decision in Bass that these are separate crimes. We disagree.

Although the legislative history is not detailed, it is readily apparent from it that the overall purpose of 18 U.S.C. App. § 1202(a) was to prevent certain classes of persons, among them convicted felons, from "acquiring" firearms.3 "Acquire," of course, does not imply a two-party transaction4 and neither, do we believe, does the term "receives" as used in the statute. Accordingly, we hold that a felon who acquires a weapon by theft, receives that weapon within the meaning of § 1202(a).

This court, it should be noted, has given tacit approval to the fact that § 1202(a) encompasses a theft. In United States v. Lupino, 480 F.2d 720 (8th Cir.), cert. denied, 414 U.S. 924, 94 S. Ct. 257, 38 L. Ed. 2d 159 (1973), two defendants were charged with conspiring to receive a weapon. They argued that they could not be convicted of conspiracy on that charge because it necessarily required two persons to commit. Then Chief Judge Matthes said:

First, we are not inclined to hold that the substantive offense of receiving a firearm prohibited by § 1202(a) is of such a nature as to necessarily require the participation of two persons for its commission. Conceivably a felon acting alone could receive a firearm. See, e. g., United States v. Giannoni, 472 F.2d 136 (9th Cir. 1973).

In Giannoni, the defendant was convicted of receiving on the basis of a theft from a pawnshop.

Defendant's contention that possession and receiving have been merged to form one crime thus allowing the government to obviate its greater burden of proof concerning interstate commerce under a possession count likewise fails analysis. Under a receiving charge, the government assumes the additional burden of proving the receipt of the firearm occurred in the district where the prosecution takes place. United States v. Haley, 500 F.2d 302, 304-05 (8th Cir. 1974). Cf. United States v. Overshon, 494 F.2d 894, 899-900 (8th Cir.), cert. denied, 419 U.S. 853, 878, 95 S. Ct. 96, 142 42 L. Ed. 2d 85, 118 (1974). Venue is a fact which must always be established at trial. There are also several instances when a felon could possess a weapon without the possibility of being subject to a charge of receiving it. A felon could for example have received a gun before he was convicted of a felony or he could have received it beyond the statute of limitations for the receiving offense and yet still be in possession.5

In this instance, the government sustained its burden of proof (1) that the defendant was a convicted felon at the times he received the weapons; (2) that he received them in the Western District of Missouri; and (3) that the guns had previously been transported in interstate commerce.

We turn now to the government's appeal, No. 74-1962, concerning the refusal of the district court to invoke 18 U.S.C. § 3575 and find the defendant to be a dangerous special offender.6

The notice filed by the United States Attorney stated the reasons for invoking § 3575 as follows:

The defendant is a special offender for the purposes of 18 United States Code, Section 3575 and within the meaning of 18 United States Code, Section 3575(e), having been convicted in Courts of the State of Missouri of two felonies, the first felony conviction for stealing from the person on September 23, 1963, in the Circuit Court of Jackson County, and sentenced to two years confinement; and the second felony conviction for robbery in the first degree occurring in the Circuit Court of the State of Missouri for the City of St. Louis, on the 7th day of July, 1969, and sentenced to eight years confinement. The defendant was confined in the Missouri State Prison, Jefferson City, Missouri, as a result of both convictions and was released from the Missouri State Penitentiary on the second felony conviction on or about the 17th day of August, 1972, within five years from the dates of the commission of the offenses charged in the above-styled cause.

The defendant is dangerous within the meaning of Title 18, United States Code, Section 3575(f) requiring that a period of confinement longer than that provided for the offense for which he was convicted, Title 18 Appendix, United States Code, Section 1202(a)(1), to protect the public from further criminal conduct by said defendant.

The government contends the above notice was sufficient in itself to show why the defendant should be considered dangerous. It argues that, as a notice, it need only be a plain, concise and definite statement of the government's intended action.

Judicial interpretation of the notice requirement of § 3575 is minimal. To date the only district judges who have considered it in reported opinions are in the Western District of Missouri. Judge Hunter in this case, United States v. Kelly, 384 F. Supp. 1394 (W.D.Mo.1974), and Judge Oliver in United States v. Duardi, 384 F. Supp. 874 (W.D.Mo.1974).7 Duardi was appealed to this court by the government on the precise issue presented here, but was dismissed for lack of jurisdiction since the court had not yet pronounced final sentence. See United States v. Duardi, 514 F.2d 545 (8th Cir. 1975).

Judge Oliver's opinion in United States v. Duardi, 384 F. Supp. 861 (W.D.Mo.1973), is representative of the approach taken by both courts. He quoted those portions of the legislative history which emphasized the need to determine "dangerousness" and concluded:

The notion that the government can proceed upon the theory that "organized crime offenders pose a special threat to the public" (Govt's Response, p. 10) and that it may ignore the Congressional command that it must include in its notice and thereafter establish both that a particular defendant is a "special offender" within the meaning of one of the three categories of § 3575(e), and is also "dangerous" within the meaning of § 3575(f), is totally without support and is directly contrary to the legislative history of the applicable statute. 384 F. Supp. at 869.

We find the plain language of the act itself defeats the government's argument. Under the act a notice is required "(1) specifying that the defendant is a dangerous special offender who upon conviction for such felony is subject to the imposition of a sentence under subsection (b) of this section, and (2) setting out with particularity the reasons why such attorney believes the defendant to be a dangerous special offender." (Emphasis added.)

In the early decision of United States v. Standard Brewery, 251 U.S. 210, 40 S. Ct. 139, 64 L. Ed. 229 (1920), the Court observed:

Nothing is better settled than that in the construction of a law its meaning must first be sought in the language employed. If that be plain, it is the duty of the courts to enforce the law as written, provided it be within the constitutional authority of the legislative body which passed it.

Id. at 217, 40 S.Ct. at 140.

If that wording is plain and simple and straightforward, the words employed must be accorded their normal meaning. As the Court said in Helvering v. Hammel, 311 U.S. 504, 61 S. Ct. 368, 85 L. Ed. 303 (1941):

True, courts in the interpretation of a statute have some scope for adopting a restricted rather than a literal or usual meaning of its words where acceptance of that meaning would lead to absurd results, United States v. Katz, 271 U.S. 354, 362 (46 S. Ct. 513, 516, 70 L. Ed. 986), or would thwart the obvious purpose of the statute, Haggar Co. v. Helvering, 308 U.S. 389 (60 S. Ct. 337, 84 L. Ed. 340). But courts are not free to reject that meaning where no such consequences follow and where, as here, it appears to be consonant with the purposes of the Act as declared by Congress and plainly disclosed by its structure.

Id. at 510-511, 61 S.Ct. at 371. (Emphasis added.)

In sum it is not for the court to say, where the language of the statute is clear, that a legislative act may encompass a more restricted meaning. We believe the district court correctly found the notice insufficient. Under the circumstances we need not meet the more serious challenge to the act's constitutionality. The cross appeal by the government is dismissed and the judgment of conviction is affirmed.