Opinion
No. 71-1353.
January 18, 1972.
O. B. Johnston, III, Asst. U.S. Atty. (William R. Burkett, U.S. Atty., on the brief), for plaintiff-appellee.
Mac Oyler, Oklahoma City, Okl., for defendant-appellant.
Appeal from the United States District Court for the Western District of Oklahoma.
Before PICKETT, HILL and DOYLE, Circuit Judges.
This is an appeal from a jury verdict finding defendant guilty of possessing a firearm in violation of Title VII of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. App. § 1202(a)(1).
The facts in brief are these. Dennis Bates Fletcher had been convicted previously of interstate transportation of a forged security, a felony. When apprehended in Oklahoma City on October 27, 1970, for a traffic violation, he was found to be in possession of two handguns and a shotgun.
Fletcher was employed by a bonding company in Oklahoma City. In defense to the charge at trial he pleaded entrapment based on an alleged phone call by the police urging that he come armed to assist in the arrest of an accused who had broken bond. An arrest would have saved his employer $5,000.00. There was a complete dearth of evidence on the issue of interstate transportation of the weapons.
The present conviction must be reversed for the failure of proof noted. This action is dictated by United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971). The indictment did not allege that any of the guns had any connection with interstate commerce, nor as shown above was such proof adduced.
Reversed.