No. 12439 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1973 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

-vs - 

TAWRENCE KAZOR NANOFF, 

Defendant and Appellant. 

Appeal from: District Court of the Eighth Judicial District, 

Honorable R. J. Nelson, Judge presiding. 

Counsel of Record: 

For Appellant : 

Berger, Anderson, Sinclair and Murphy, Billtngs, 

Montana. 

Arnold A. Berger argued, Billings, Montana. 

For Respondent : 

Hon. Robert L. Woodahl, Attorney General, Helena, 

Montana. 

J. C . Weingartner argued, Assistant Attorney General, 

Helena, Montana. 

J. Fred Bourdeau, County Attorney, Great Falls, 

Montana . 

Submitted: April 26, 1973 

Decided : - RAY - 9 1913 

Filed: MAY - 5 i3;"i -I 
Mr. Justice Wesley Castles delivered the Opinion of the Court. 

This is an appeal from a post-trial order of the district 

court of Cascade County refusing to return items of personal 

property owned by defendant. 

Defendant Lawrence Kazor Nanoff was convicted of the crime 

of receiving stolen property, That conviction was made possible 

by the introduction of various items seized under a search warrant 

issued by the district court. Among the items seized were stereo 

equipment, television sets, and a number of guns and ammunition, 

some of which had been stolen, Also seized were some guns and 

ammunition which had not been stolen, but belonged to defendant. 

The conviction was appealed to this Court and reversed on the 

basis of a faulty search warrant. State v, Nanoff, - Mon t . 9 

502 P,2d 1138, 29 %.Rep, 908. 

Defendant had been convicted of a previous felony, first 

degree burglary. He was sentenced to two years imprisonment in the 

Montana state prison. He was paroled on March 15, 1950 and his 

sentence expired August 15, 1950, 

After defendant's convicti.on was reversed and subsequently 

dismissed, he moved the district court under section 95-715, 

R,C,M, 1947, to return to him all his personal property; not including anything proved to have been stolen, This personal property 

included guns, ammunition, camera, radio, cassette tape recorder 

and an 8 track stereo set. The district court refused to return 

defendant's own personal guns and ammunition based on Title 18, 

U.S.C.App, 5 1202, which prohibits convicted felons from possessing, 

receiving, or transporting in interstate or affecting interstate 

commerce, any firearm. The district court offered defendant two 

alternatives: (1) that defendant assign and deliver the guns to 

his attorney with the understanding that they not be returned to 

defendant; or (2) that defendant ask the court to sell the items 

and have the proceeds turned over to defendant, 
Defendant appeals this order of the district court asking 

that both options be stricken and the weapons returned to him. 

The only issue on this appeal is whether Title 18, U.S.C. 

App. $1202 prohibits appellant from owning firearms. Section 

1202(a) reads in pertinent part: 

1 I Any person who---- 

"(1) has been convicted by a court of the Un.ited 

States or of a State or any political subdivision 

thereof of a felony, or * * * 11 and who receives, possesses, or transports in 

commerce or affecting commerce, after the date of 

enactment of this Act, any firearm shall be fined 

not more than $10,000 or imprisoned for not mare than 

two years, or both." 

The decision of the district court, based upon the above 

quoted statute was centered on the fact appellant was a convicted 

felon. There was no evidence that appellant was in any way 

affecting commerce by his possession of these guns. 

Section 1202 has been interpreted by the United States 

Supreme Court in United States v, Denneth Bass, 404 U,S, 336, 

92 S.Ct, 515, 30 L ed 2d 488, 491,497,498, decided December 20, 

1971. The fact summation by the Court is concise and pertinent: 

r I The evidence showed that defendant, who had previously been convicted of a felony in New York State, 

possessed on separate occasions a pistol and then a 

shotgun. There was no allegation in the indictment 

and no attempt by the prosecution to show that either 

firearm had been possessed 'in commerce or affecting 

commercef. The Government proceeded on the assumption 

that $ 1202(a)(l) banned all possessions and receipts 

of firearms by convicted felons, and that no connection 

with interstate commerce had to be demonstrated in 

individual cases. " 

The Court ruled that the t~ords "in commerce or affecting 

commerce" are in-tended to modify the three words "receives", 

1 r or lltransportslr. It then went on to find there was 

an ambiguity in the statute and that when there are two interpretations the Court will adopt the one most favorable to the 

defendant : 

I I Thus, where there is ambiguity in a criminal statute, 

doubts are resolved in favor of the defendant, Here, 

I we conclude that Congress has not plainly and unmistakably, t 
United States v, Gradwell, 243 US 476, 485, 61 L Ed 

857, 864, 37 S Ct 487, made it a federal crime for 

a convicted felon simply to possess a gun absent 

some demonstrated nexus with interstate com~erce. I I 

The Court then commented on the Federal-State balance and 

its desire to preserve the same, It emphasized that if the states 

wanted to pass legislation making possessi.on of a firearm a crime 

by a particular class of persons, they were free to do so; however, 

the Congress had not done so in § 1202. Again, in Bass the Court -> 

said : 

"Absent a clearer statement of intention from 

Congress than is present here, we do not interpret I 5 1202(a) to reach the mere possession' of firearms, 1 l 

Based upon this clear mandate by the United States Supreme 

Court, we can find no authority to uphold the state's position. 

In its brief the state did not attempt to support the action of 

the district court based on any federal law, Instead the state 

argues th~t since appellant is a convicted felon and has never 

been pardoned, that he has lost his right to own a g~m. This 

Court does not see how that argument applies where, as here, the 

state went into appellant's home on a faulty search warrant and 

without authority took personal. property belonging to appellant, 

The state contends it does not have to return the personal property 

because appellant twenty years ago was convicted of a felony, 

Neither the reasoning of the state nor the action taken by the 

di.strict court is supported by the law, 

We therefore order that the cause be remanded to the district 

court so that all of appellant's personal property now in possession 

of the court be returned to appellant as provided in section 

95-715, R.C.N. 1947, 
- - / / 'chief Justice 

\* 

-t. - __- ,+. Associate Justices.