United States v. Orlando Pershing Harp

U.S. Court of Appeals for the Fifth Circuit
United States v. Orlando Pershing Harp, 454 F.2d 1161 (5th Cir. 1972)
1972 U.S. App. LEXIS 11561

United States v. Orlando Pershing Harp

Opinion

PER CURIAM:

Orlando Pershing Harp was convicted under a single-count indictment for knowingly possessing a firearm in violation of 18 U.S.C. App. § 1202(a) (1). The statute punishes a previously convicted felon who “receives, possesses, or transports in commerce or affecting commerce .... any firearm”. 18 U.S.C. App. § 1202(a) (1). Subsequent to oral argument in this appeal, the Supreme Court held that this statute does not reach mere possession of firearms and, therefore, the government must demonstrate some nexus with interstate commerce when a defendant is charged with possessing or transporting a firearm. United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488, 1971. A review of the record reveals that it was neither alleged in the indictment nor proved by the government that Harp *1162 possessed the .38 caliber pistol “in commerce or affecting commerce.” Since such a showing was not made by the government in this case, the conviction cannot stand.

Because of the result we have reached, it is unnecessary to discuss the several other contentions Harp raises on appeal.

The judgment of the district court is reversed and the cause is remanded to the district court for further proceedings not inconsistent with United States v. Bass, supra.

Reversed and remanded.

Reference

Full Case Name
UNITED STATES of America, Plaintiff-Appellee, v. Orlando Pershing HARP, Defendant-Appellant
Cited By
1 case
Status
Published