UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
JERRY THRASHER, DEFENDANT-APPELLANT
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The court held that the government is not required to prove knowledge of the firearm's interstate nexus and has discretion to prosecute under either of two similar statutes.
Jerry Thrasher, a convicted felon, was found with a .25 caliber pistol in his coat pocket while drunk in his car. The pistol had been shipped from Flo…
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PER CURIAM:
Jerry Thrasher, a convicted felon, appeals his conviction for receiving and possessing a firearm transported in interstate commerce. 18 U.S.C.A. § 922(h)(1). Finding his contentions without merit, we affirm.
Testimony at trial established that the firearm, a .25 caliber pistol, was shipped from Miami, Florida, to a licensed dealer in Yazoo City, Mississippi. It then was sold to a Martha Jackson. On January 8, 1977, Allen Bigford had possession of the pistol when he and Thrasher were drinking. Early the following morning police officers found them drunk in Thrasher’s car. The pistol was in appellant’s coat pocket.
Thrasher’s first contention is that the evidence was insufficient to prove he had knowledge the firearm was shipped in interstate commerce. The law is well settled, however, that the government is not required to prove knowledge of the interstate nexus of the firearm. See United States v. Manley, 5 Cir., 1977, 563 F. 2d 779, and cases cited therein.
Thrasher also argues that he was indicted under the wrong statute. He points out that 18 U.S.C.A. App. § 1202(a)(1) contains a provision similar to 18 U.S.C.A. § 922(h)(1) prohibiting receipt of firearms by a felon and carrying a lesser maximum penalty. These statutes were enacted simultaneously by different titles of the Omnibus Crime Control and Safe Streets Act of 1968. See United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488. In absence of any language to the contrary, however, the government has the discretion to prosecute under either statute, regardless of whether one allows a harsher sentence. United States v. Phillips, 8 Cir., 1975, 522 F. 2d 388; Mauney v. United States, 6 Cir., 1972, 454 F. 2d 273. Cf. United States v. Hancock, 5 Cir., 1971, 441 F. 2d 1285, 1287, cert. denied, 404 U.S. 833, 92 S.Ct. 81, 30 L.Ed.2d 63 (government has discretion to prosecute for fraudulent misapplication of investment company funds, 18 U.S.C.A. § 657, or for fraudulent receipt of such funds, 18 U.S.C.A. § 1006).
AFFIRMED.
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- United States v. Bass, 404 U.S. 336 (U.S. 1971)
- Elec. Components for Indus. Co. v. Elec. Commc'ns, Inc., 404 U.S. 833 (U.S. 1971)
- Suggs v. Comstock, 404 U.S. 833 (U.S. 1971)
- United States v. Phillips, 522 F.2d 388 (8th Cir. 1975)
- United States v. Hancock, 441 F.2d 1285 (5th Cir. 1971)
- Mauney v. United States, 454 F.2d 273 (6th Cir. 1972)
- United States v. Manley, 563 F.2d 779 (5th Cir. 1977)