I concur in the result reached in denying relief but for different reasons. *Page 953
The State relied upon a conviction obtained under 18 U.S.C.A.App. Section 1202(a) to enhance petitioner's punishment to life. The dissent would grant petitioner relief on the basis that the indictment in that cause was fundamentally defective and that, as a result, the State failed to prove the prior federal conviction was valid.
It is not within the province of this Court to pass upon the validity of federal indictments. In essence, petitioner is collaterally attacking the validity of the federal conviction in the wrong forum. Since that conviction is final, and since neither the United States Fifth Circuit Court of Appeals nor any other federal court has declared the conviction invalid, we should give full faith and credit to the judgment of the federal district court and deny the relief sought.
Further, for reasons which follow, habeas corpus would be unavailable even in the federal courts to challenge the sufficiency of the indictment in question. That we have no authority to sanction this collateral attack upon the federal indictment in state court should be beyond dispute.
Section 1202(a) provides, in part:
"Any person who
"(1) has been convicted by a court of the United States or of a State or any political subdivision thereof of a felony . . . and who receives, possesses, or transports in commerce or affecting commerce . . . any firearm . . ." shall be punished as prescribed therein.
The indictment in Cause No. 70-B-122 states, in substance:
"Title 18, United States Code, Appendix Section 1202(a).
"That on or about February 7, 1970, in Brownsville, Cameron County, Texas, and in the Southern District of Texas, Alfredo Aguilar Garcia, Jr., defendant herein, being a person who had been convicted by a court of the State of Texas of a felony, did knowingly and unlawfully possess a firearm, to wit, a .32 caliber Harrington and Richardson revolver, model 732, serial number AF 16076, in violation of Title VII of the Omnibus Crime Control and Safe Streets Act of 1968 Public Law 90-351, as amended."
The authors of the plurality and dissenting opinions declare that the federal courts would probably grant petitioner relief under the authority of United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971). In that case, defendant was convicted of possessing firearms in violation of Section 1202(a)(1). The indictment did not allege and the government did not show that the firearms involved had been possessed "in commerce or affecting commerce."
On appeal, the government contended that Section 1202(a)(1) 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 of Appeals rejected that contention and reversed.
The Supreme Court of the United States then construed the statute and determined that it was not clear from the language and legislative history of Section 1202(a)(1) whether or not receipt or possession of a firearm by a convicted felon has to be shown in an individual prosecution to have been connected with interstate commerce. Affirming the decision of the Court of Appeals, the Supreme Court reasoned that the ambiguity of the provision must be resolved in favor of the narrower reading that a nexus with interstate commerce must be shown with respect to all three offenses embraced by the provision. Otherwise, ". . . Sec. 1202(a) dramatically intrudes upon traditional state criminal jurisdiction." 404 U.S., at 350, 92 S.Ct., at 524, 30 L.Ed.2d, at 498. The Court, therefore, held that the government must prove a nexus with interstate commerce in each case prosecuted under Section 1202(a) but did not hold that an indictment which fails to allege that element was fatally defective.
Furthermore, in Scarborough v. United States, 431 U.S. 563, 97 S.Ct. 1963, 52 *Page 954 L.Ed.2d 582 (1977), the Supreme Court retreated from its decision in Bass as far as it possibly could without expressly overruling that decision. The Court in Scarborough held that proof that a firearm possessed by an accused traveled at some time in interstate commerce, even before the accused became a convicted felon, was sufficient to satisfy the statutorily required nexus between the possession of a firearm by a convicted felon and commerce.
Justice Marshall, who wrote the opinion in Bass, also wrote for the majority in Scarborough as follows:
". . . Indeed, it was a close question in Bass whether § 1202(a) even required proof of any nexus at all in individual cases. The only reason we concluded it did was because it was not `plainly and unmistakably' clear that it did not. 404 U.S., at 348, 92 S.Ct. 515, 30 L.Ed.2d 488. But there is no question that Congress intended no more than a minimal nexus requirement." 431 U.S., at 577, 97 S.Ct., at 1970-71, 52 L.Ed.2d, at 593.
United States v. Fiorito, 465 F.2d 431 (7th Cir. 1972), and Bryant v. United States, 462 F.2d 433 (8th Cir. 1972), were both decided prior to Scarborough. In this light, neither case is persuasive authority for the proposition that "in commerce or affecting commerce" is an essential element of Section 1202(a) that must be alleged as well as proven. Moreover, those cases are not on point because in each the sufficiency of the indictment was challenged on direct appeal and not by collateral attack.
In the federal courts, habeas corpus is available to challenge the validity or sufficiency of an indictment only in rare cases. Knewel v. Egan, 268 U.S. 442, 45 S.Ct. 522, 69 L.Ed. 1036 (1925); Roth v. United States, 295 F.2d 364 (8th Cir. 1961), cert. denied 368 U.S. 1004, 82 S.Ct. 639, 7 L.Ed.2d 543; Via v. Perini, 415 F.2d 1052 (6th Cir. 1969). The judgment must withstand a collateral attack if the indictment is sufficient to meet constitutional requirements. Chavez v. Baker, 399 F.2d 943 (10th Cir. 1968), cert. denied394 U.S. 950, 89 S.Ct. 1289, 22 L.Ed.2d 485; Scalf v. Bennett,408 F.2d 325 (8th Cir. 1969), cert. denied 396 U.S. 887, 90 S.Ct. 175, 24 L.Ed.2d 161. Such requirements are met unless under no circumstances could a valid conviction result from facts provable under the indictment. Johnson v. Beto, 383 F.2d 197 (5th Cir. 1967), cert. denied 393 U.S. 868, 89 S.Ct. 153, 21 L.Ed.2d 136; Murphy v. Beto, 416 F.2d 98 (5th Cir. 1969).
Some courts have even held that the sufficiency of an indictment is not subject to collateral attack if it apparently attempts to state a federal crime. Bush v. United States,347 F.2d 231 (6th Cir. 1965), cert. denied 382 U.S. 995, 86 S.Ct. 579, 15 L.Ed.2d 482; Kreuter v. United States, 201 F.2d 33 (10th Cir. 1952). It is beyond dispute that the indictment in the present case meets this test.
Furthermore, this indictment made reference to the official citation of the statute. Such citation provided a means by which petitioner could inform himself of the elements of the offense and hence the indictment is not constitutionally defective under any test. United States v. Roberts,296 F.2d 198 (4th Cir. 1961); Downing v. United States, 348 F.2d 594 (5th Cir. 1965); Gearing v. United States, 432 F.2d 1038 (5th Cir. 1970).
Whether or not the indictment could have been successfully challenged on direct appeal from the federal conviction, it would not be subject to collateral attack in the federal courts. That the writ of habeas corpus cannot properly be invoked in state court to test the sufficiency of the federal indictment should require no discussion.
Petitioner was convicted of an offense defined by a federal statute of which the United States District Court for the Southern District of Texas had jurisdiction. The indictment charged an offense under such statute and the district court acquired jurisdiction over petitioner's person. The conviction is presumptively valid unless and *Page 955 until a federal court declares it invalid. This Court has no authority to pass upon the sufficiency of the federal indictment. We should leave federal litigation to the federal courts.
DALLY, J., joins in this concurrence.