No. 12439 INTHE 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, Sinclairand 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

# - 5i3;"i
-IMr. JusticeWesley Castles delivered the Opinion of the Court.
This isan appeal from a post-trial order of the district court of Cascade County refusing toreturn 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 convictionwas appealed tothis Court and reversed on the basis of a faulty search warrant. Statev, Nanoff, Mont

# . - 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 stateprison. 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, toreturn tohim allhis personal property; not including anything proved tohave been stolen, This personal property included guns, ammunition, camera, radio, cassette tape recorder and an 

### 8 track stereo set. The district court refused toreturn 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 attorneywith the understanding that they not be returned to defendant; or (2) that defendant ask the court to sellthe items and have the proceeds turned over to defendant,Defendant appeals this order of the district court asking thatboth optionsbe stricken and the weapons returned tohim. The only issue on this appeal 

### iswhether Title 18, U.S.C. App. $1202prohibits appellant from owning firearms. Section 1202(a) reads inpertinent part:

1IAny 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

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11

and who receives, possesses, or transports in commerce or affecting commerce, after the date of enactment of thisAct, any firearm shallbe fined not more than $10,000 or imprisoned fornot mare than two years, orboth." The decision of the district court, based upon the above quoted statutewas 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 1202has been interpreted by the United States Supreme Court in United Statesv, 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 

### isconcise and pertinent:

rIThe evidence showed that defendant, who had previously been convicted of a felony inNew 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 firearmhad been possessed 'in commerce or affecting commercef. The Government proceeded on the assumption that $ 1202(a)(l) banned allpossessions and receipts of firearmsby convicted felons, and that no connection with interstate commerce had tobe demonstrated in individual cases.

## " The Court ruled that thet~ords "in commerce or affecting commerce" are in-tendedto modify the threewords "receives",

1r or lltransportslr. It then went on to find there was
an ambiguity in the statuteand that when there are two interpretations the Court willadopt the one most favorable to the defendant:

IIThus, where there isambiguity in a criminal statute, doubts areresolved in favor of the defendant, Here, I 

### we conclude that Congress has not plainly and unmistakably, tUnited 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. II The Court then commented on the Federal-State balance and itsdesire to preserve the same, It emphasized that if the states wanted topass legislation making possessi.on of a firearma crime by 

### a particular class of persons, they were free to do so; however, the Congress had not done so in § 1202. Again, inBass the Court -> said:"Absent a clearer statement of intention from Congress than ispresent here, we do not interpret I 

### 5 1202(a) toreach the mere possession' of firearms, 1l Based upon this clear mandate by the United States Supreme Court, we can find no authority touphold the state's position. In itsbrief 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 losthis right to own a g~m.This Court does not see how that argument applies where, ashere, the statewent into appellant's home on a faulty search warrant and without authority took personal. property belonging to appellant, The statecontends it does not have toreturn the personal property because appellant twenty years ago was convicted of 

### a felony, Neither the reasoning of the statenor 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 allof appellant's personal property now inpossession of the court be returned to appellant as provided in section 95-715, R.C.N. 1947,- - 

# // 'chief Justice

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Associate Justices.