concurring in part and dissenting in part.
The majority opinion of the Court sustains Graves’ conviction on both the § 922(a)(6) count and the § 1202(a) count, by giving the same reading to both statutes despite the marked difference in their wording and thrust. The dissent, on the other hand, would reverse Graves’ conviction on both counts by similarly reading the two statutes together (although it arrives at a result contrary to that of the majority) —again, despite the marked difference in their wording and thrust.
I am obliged to disagree in part with both my brothers in the majority and those in the dissent because I perceive no basis in reason, logic or precedent to require an identical interpretation of both statutory enactments. The substantial differences between § 922(a)(6) and § 1202(a),1 I believe, warrant our affirming Graves’ conviction under § 922(a)(6) and reversing his conviction under § 1202(a).
I.
I note first that my research has not disclosed any case other than this one which has implicated the construction of both these statutes in the instant context.2 Nor have I found any individual cases within the same Circuit which have interpreted *84§ 922(a)(6) and § 1202(a) in identical fashion. Hence, at this juncture I have seen no reasoned authority of any court which has dispositively held, or even suggested, that both statutes must be construed so as to require the same result, whether that result would fall on the side of the majority in this case, or on the side of the dissent.
Just as some courts have held that § 922(a)(6) is a regulatory statute (in accordance with the majority’s holding here),3 others have held that Burgett v. Texas4 must be read into § 922 and would require proof by the government that the underlying conviction implicated in a § 922(a)(6) indictment was a constitutional conviction.5 The same conflict exists with respect to holdings interpreting § 1202(a).6
With these observations as a preface, I feel free to record my own view that an identical reading of both statutes is not required, even though both may have originated with the Omnibus Crime Control Act of 1968, and hence there need be no symmetry in our disposition of Graves’ convictions ■ under the two counts.7
II.
I read the majority opinion as intimating (albeit ever so slightly) that perhaps a result different from that which it reaches in § 922(a)(6) cases could be reached in a § 1202(a) case, — that is: that a defendant liable for nondisclosure of a felony conviction under § 922(a)(6) could nonetheless defend against § 1202(a) charges by urging the invalidity of that underlying conviction. Although the majority obviously does not so conclude, it nevertheless strains to distinguish Supreme Court precedent and to glean encouragement from the spare and uninformative legislative history in order to support its conclusion that both statutes should be construed alike. The dissent, by contrast, concentrates its attention on § 1202, apparently recognizing the difficulty in refuting the statutory mandate of § 922(a)(6), which simply punishes material nondisclosures.8
18 U.S.C. § 922(a)(6) prohibits the making of false or fictitious oral or written statements intended or likely to deceive, with respect to any fact material to the lawfulness of a firearms sale. Nowhere in § 922(a)(6) itself does the term “prior conviction” appear. To implement this section of the statute, reference must be made to matters extrinsic to the specific provision itself. In this case, the firearms dealer required Graves to complete and sign Treasury Form 4473, which included a series of questions for Graves to answer. The certificate appears as follows in pertinent part:9
8. Certification of Transferee (Buyer) —an untruthful answer may subject you to criminal prosecution. Each question must be answered with a yes or no.
a. Are you under indictment in any court for a crime punishable by imprisonment for a term exceeding one year? NO
b. Have you been convicted in any court of a crime punishable by imprisonment for a term exceeding one year?
*85(Note: The actual sentence given by the judge does not matter— a yes answer is necessary if the judge could have given a sentence of more than one year.) NO
c. Are you a fugitive from justice? NO
d. Are you an unlawful user of, or addicted to, marihuana or a depressant, stimulant, or narcotic ' drug? NO
e. Have you been adjudicated mentally defective or have you ever been committed to a mental institution? NO
f. Have you been discharged from the Armed Forces under dishonorable conditions? NO
g. Are you an alien illegally in the United States? NO
h. Are you a person who, having been a citizen of the United States, has renounced his citizenship? NO
I hereby certify that the answers to the above are true and correct. I understand that a person who answers any of the above questions in the affirmative is prohibited by Federal law from purchasing and/or possessing a firearm. I also understand that the making of any false oral or written statement or the exhibiting of any false or misrepresented identification with respect to this transaction is a crime punishable as a felony.
Despite the statement in the Majority Opinion (Maj. Op. p. 70) that the Treasury Department requires completion of Form 4473, I believe that it is significant that Congress in enacting § 922(a)(6), did not prescribe the use of this or any other form.10 For all that appears in § 922(a)(6), some or all of these questions could be asked orally or could be included in a form of the seller’s own devise. Further, the legend that appears at the foot of section 8 of the form gives clear and unmistakable warning of the consequences that may follow a false statement.11
It is clear to me, as it is to the majority of this Court, that § 922(a)(6) is concerned not with the status of a convicted felon as that status may affect his future activities, but rather with the requirement that a firearms purchaser divulge truthful, essential information.12 One portion of .that information concededly concerns any prior conviction. At least on the form signed by Graves, however, there are seven other categories about which information was sought and which could trigger criminal sanctions if answered untruthfully. The nub of the offense sought to be proscribed here is lying. Graves had it completely within his power at the time of his purchase to avoid all criminal sanction by the mere expedient of answering truthfully.
The language of § 922(a)(6) is crystal clear on its face.13 In essence, all that need be shown in a § 922(a)(6) prosecution is that a knowing false statement was made, whether that statement pertained to the defendant’s underlying conviction or to one of the other matters enumerated in Treasury Form 4473, if that form is employed by the seller. To import implied concepts qualifying the nature of the falsehood of which the defendant stands accused would in my view thwart the explicit terms as well as the objective of this enactment.
I believe, as Judge Adams does in writing for the majority, that § 922(a)(6) accomplishes the regulation of the manner by which firearms can be acquired. The activity regulated should be viewed as of the discrete time when the acquisition takes place. At that time, Graves was either under indictment or not. He had either been convicted of a crime punishable by imprisonment for a term exceeding one year, or he had not, — and this whether his *86conviction was constitutional or unconstitutional. He was either a fugitive from justice at that time, or he was not. He either used narcotics at that time or he did not. He either had been adjudicated mentally defective, or committed to a mental institution at that time, or he had not. (See pp. 84-85 supra, Treasury Form 4473). Each of these questions, including those pertaining to his army discharge and citizenship, were susceptible of answers within the knowledge of Graves at the very moment his firearms purchase was made. If Graves answered falsely, punishment could follow.
One final observation seems in order. In Huddleston v. United States, 415 U.S. 814, 94 S.Ct. 1262, 39 L.Ed.2d 782 (1974), the Supreme Court affirmed a § 922(a)(6) conviction for a false statement made in the course of a pawn redemption of firearms. Among the arguments made to the Supreme Court was petitioner’s contention that § 922(a)(6)’s applicability to pawn redemptions was “so ambiguous and uncertain that the statute should be narrowly construed in his favor.” Id. at 830, 94 S.Ct. at 1271. Although the Court acknowledged the need to construe penal laws strictly, id. at 831, 94 S.Ct. 1262, it rejected this contention argued by petitioner.
Nonetheless, the Court’s reasoning is instructive for present purposes. The Court first analyzed the basis for the rule of lenity:
This rule of narrow construction is rooted in the concern of the law for individual rights, and in the belief that fair warning should be accorded as to what conduct, is, criminal and punishable by deprivation of liberty or property. (Emphasis supplied.)14
The Court then dealt with petitioner’s contention in the context of § 922(a)(6).
We perceive no grievous ambiguity or uncertainty in the language and structure of the Act. The statute in question clearly proscribes petitioner’s conduct and accorded him fair warning of the sanctions the law placed on that conduct. Huddleston was not short of notice that his actions were unlawful. The question he answered untruthfully was preceded by a warning in boldface type that “an untruthful answer may subject you to criminal prosecution.” The question itself was forthright and direct, stating that it was concerned with conviction of a crime punishable by imprisonment for a term exceeding one year and that this meant the term which could have been imposed and not the sentence actually given. Finally, petitioner was required to certify by his signature that his answers were true and correct and that he understood that “the making of any false oral or written statement . . . with respect to this transaction is a crime punishable as a felony.” This warning also was in boldface type. Clearly, petitioner had adequate notice and warning of the consequences of his action.
Id. at 831-32, 94 S.Ct. at 1272. Thus the Court found that § 922(a)(6) as implemented through the use of Treasury Form 4473 (the same form completed by Graves here), operated so as to afford Huddleston adequate notice and warning of the consequences of nondisclosure.
To require the government to prove at trial that the predicate conviction was a constitutional conviction (1) when the statute by its terms does not even refer to conviction; (2) when the purchaser may or may not have been asked about his prior convictions;15 (3) when the purchaser, as in the case of Graves, had “adequate notice and warning”; and (4) when the only sanction that can be imposed if such question was asked and then answered affirmatively is the refusal to sell a firearm, would be to import a construction into § 922(a)(6) which *87denies the plain meaning of the statute’s language.16
III.
Although I agree that appellant’s conviction for nondisclosure of a felony conviction under § 922(a)(6) must be affirmed, in my opinion the same result does not obtain with respect to the § 1202(a) count. Under § 1202(a) it is the status of the individual, not his affirmative act of furnishing information which determines his permissible “firearm” activity. The statute itself, unlike § 922(a)(6), contains as an integral element the requirement of a prior felony conviction. To prosecute and obtain a conviction under § 1202(a), the government must prove the element of a prior conviction just as it must prove the interstate nexus required by the statute.17 The question then arises, what is the quality of the conviction to be proved? Will a prior conviction, obtained unconstitutionally, suffice, particularly where the reach of the statute is as broad as that of § 1202(a)?
United States v. Bass,18 in discussing the same statute, albeit in a different context, held that § 1202 (a part of Title VII of the Omnibus Crime Control and Safe Streets Act of 1968) could be interpreted differently from those sections appearing in Title IV, including § 922; moreover, it required that § 1202(a) be narrowly construed, as the defendant there had urged.19 The approach to § 1202(a) taken in Bass, coupled in this case with the Supreme Court’s pronouncements in Burgett v. Texas,20 United States v. Tucker,21 and Loper v. Beto,22 satisfy me that § 1202(a) does not by its terms, objective or intendment fall within the regulatory ambit to which it is consigned by the majority.
I believe, as does Judge Gibbons writing in dissent, that § 1202(a) requires that the underlying felony conviction be a constitutional conviction. Although I need not elaborate upon Judge Gibbons’ discussion of § 1202(a), I do find it necessary to comment on several aspects of the majority’s § 1202 discussion in order to show the extent of my disagreement with its reasoning.
I find unconvincing the majority’s assertion that Burgett v. Texas, supra, is not controlling on the § 1202(a) charge. Initially, I find an even closer relationship existing between the prior conviction and liability in this case than that which obtained in Burgett. Burgett could have been tried and convicted (albeit not under a recidivist statute) for assault with intent to murder, even without any previous felony convictions. Graves, however, could not have been prosecuted for any offense, much less an offense under § 1202(a), in the absence of his controverted felony conviction.
Nor d4 I perceive any persuasive rationale which would limit the rule of Burgett v. Texas to convictions obtained against defendants deprived of the right to counsel. Burgett rests upon two bases. The first, and the one which the majority emphasizes to the total exclusion of the other, is to prevent erosion of the principle enunciated in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). Maj. Op. at 82. More generally, however, Burgett was intended to prevent the accused from suffering anew from the deprivation of his rights. Proper consideration of this second basis compels the conclusion that no principled distinction exists, at least for purposes of the Burgett v. Texas rule, between Fourth, Fifth, Sixth, or Fourteenth Amend-*88merit violations.23 Quite simply, like Judge Gibbons in dissent, I cannot distinguish between different unconstitutional convictions in this context. Accordingly, I would conclude that Burgett does indeed govern the constitutional rights set forth by the Supreme Court in Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966), and here asserted by Graves.
The majority also rests its conclusion that Burgett is inapplicable to the present case on the fact that no violation of Graves’ Kent rights has been established nor is such violation apparent on the face of the record (Maj. Op. pp. 80-81). I believe this argument confuses two distinct and separable questions: (1) Is the rule of Burgett v. Texas generally applicable to Gun Control Act cases? And (2) if the rule is applicable, is there a constitutional violation present which would trigger application of the rule in the instant case? The majority opinion addresses itself to the second question while purporting to consider the first. I note that the district court concluded that the Burgett rule could not be extended to the denial of Kent rights, United States v. Graves, D.C., 394 F.Supp. 429 at 433, and hence it had no occasion to consider whether Graves’ state court conviction was constitutionally valid. Similarly, the second question need not be considered by this Court now. Our concern should be addressed to the primary question of the applicability of Burgett v. Texas. I see no reason to consider an issue analytically inapposite to what should be our central inquiry, in the guise of considering the applicability of Burgett, and hence I am obliged to reject the majority’s attempt to distinguish this case from Burgett on this basis.
As I have observed earlier, the Supreme Court in discussing § 922(a)(6) and finding it clear and free from ambiguity has focused on the notice and warning which that section, as implemented, provides to one acquiring a firearm. By comparison, the notice and warning accorded under § 1202(a) is minimal. As earlier noted, Section 1202(a) looks only to the status of the individual and not to his immediate acts.
Where the status of “felon” — as opposed to the nondisclosure of a felony conviction — assumes such importance, I believe, as does the dissent, that it is incumbent upon the government under Burgett and Kent to prove the constitutional validity of the predicate convictions which, it contends, confers that status.
IV.
Accordingly, I subscribe wholly to Parts I, II, III and V of Judge Gibbons’ dissent as they bear upon the use of unconstitutional convictions under § 1202(a) — just as I join Judge Adams in his discussion of § 922(a)(6). Having concluded, therefore, that it is consistent with the statutory mandate to treat both § 922(a)(6) and § 1202(a) as they are drawn24 and to give to each a meaning consistent with its particular objective, I would affirm Graves’ conviction under § 922(a)(6) (Count I) and would reverse his conviction under § 1202(a) (Count 2).
SEITZ, Chief Judge,joins in this opinion.
GIBBONS, Circuit Judge, with whom ALDISERT, Circuit Judge, joins, dissenting:I
In its initial brief in this case the United States urged:1
The government does not disagree with much of thé law cited in the defendant’s brief. If a prior conviction is void ab initio because of a constitutional defect it cannot be used to enhance punishment under a recidivist statute, Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967), nor to influence the imposition *89of sentence, United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972), nor to impeach the credibility of a defendant at his trial, Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972). We would also agree that if a defendant can show that his prior conviction was void ab initio, rather than voidable, such conviction cannot be used to supply the necessary element of a conviction of a prior felony in a trial for a subsequent federal firearms violation. Dameron v. United States, 488 F.2d 724 (5th Cir. 1974).2
Thus it has been the government’s position from the start, a position not changed before the court in banc, that a constitutionally void conviction could not be used to supply an- element of the offense of a federal firearms violation. What the government has urged is that there is a distinction between “void” convictions in which the constitutional defect went to the integrity of the fact-finding process,2 and “voidable” convictions in which the defect, while of constitutional dimensions, did not implicate the fact-finding process.3
The panel which considered this appeal in the first instance did not accept that distinction. The present majority’s position on this particular issue is unclear.4 But what is clear is that the majority has rejected the government’s own construction of the statutes in issue.5
When the appeal was before the panel we wrote:
We construe 18 U.S.C. §§ 992(h) and 1202(a)(1) to refer to constitutionally valid convictions. We do so because we have been referred to no legislative history suggesting that Congress intended the word “convicted” in either section to mean “unconstitutionally or constitutionally convicted.” (Footnote omitted).
Part II of the majority opinion concedes that “the applicable legislative record is somewhat limited in scope and does not speak directly to the precise issues raised in this case.”6 Nevertheless, that opinion industriously recreates an intention on the part of Congress to make the statutes applicable even to felons unconstitutionally convicted. With equal industry, by rearranging the same scanty materials, an argument could be constructed pointing in the other direction. But in the face of conceded ambiguity, requiring extensive exegesis, the maxim of statutory construction which should carry the day is that unclear statutes should be construed in a manner which avoids the necessity for constitutional adjudication.7 Instead, the majority opts for a construction which compels such an adjudication; a construction not even insisted upon by the government.
Conceding that we are not bound by an erroneous executive branch interpretation of legislation, nevertheless, it is at least noteworthy that in this instance the majority is ready to reach for a broader ground of decision than that urged upon us by the appellees. It is also noteworthy that in doing so the majority is willing to read Congressional intention broadly while giving a crabbed interpretation to the pronouncements of the Supreme Court in Burgett v. Texas, supra; United States v. Tucker, supra; and Loper v. Beto, supra. The majority urges that “[t]he temptation *90to extend rights to their logical margins frequently is difficult to resist. . . . ”8 There has, however, been no recently discernible tendency in this court to yield to so terrible a temptation. Nevertheless, I think that when Supreme Court authority is logically controlling we are bound thereby.
II
Before the original panel and again before the court in banc the government urged that Graves’ conviction should be affirmed because he failed to prove that his prior felony conviction was constitutionally defective. That position was a fallback from its primary “void” versus “voidable” position. In effect, the government urged that this court impose on the defendant a burden of proof with respect to an element of the government’s case. It was never urged that if a “void” conviction were put in issue in a firearms violation case its validity could not be litigated.
The original panel, having rejected the void-voidable distinction, also rejected the government’s “burden-shifting” argument on due process grounds.9 The majority does not reach this due process issue because it holds that the validity of such an extant felony conviction may not even be considered as a defense to a federal firearms charge. As with the construction of the statutes, it has given the government more than was sought.
The majority also urges that requiring the government to shoulder its burden of establishing all elements of a criminal ease beyond a reasonable doubt would create a new method of collateral attack.10 That reasoning is utterly specious when applied to the government’s use of a constitutionally void judgment as an element of a criminal offense. The defendant is not initiating a collateral attack. He is only asking to be left alone.
The majority’s reasoning is also starkly revelatory of a difference in perception of the role of the federal judiciary in a democracy organized on separation of powers principles. Trials within trials are a nuisance. But no government needs judges in order to engage in sanctioning. A democratic government, however, does need judges in order to legitimize its sanctioning. Admittedly, there is room for appropriate concern about the extent to which the federal government has strained the resources of the federal judicial branch by a disproportion between offenses to be tried and available manpower. But if the federal courts are to retain a reputation for integrity, which is their sole badge of legitimating authority, they cannot sweep under the rug their participation in giving ongoing effect to unconstitutional convictions merely because making an appropriate inquiry would take time. And we find completely unacceptable the suggestion that the availability of executive branch clemency pursuant to § 925(c) discharges us of our judicial responsibility.11
The majority has the policy perspective inverted. Certainly there must be some unconstitutional convictions that involve “such dirty business” that no court should participate in giving them ongoing effect.12
Ill
The government conceded before the original panel that a conviction obtained *91without counsel was “void” and could be collaterally attacked in the firearms prosecution. It argued, however, that a violation of the rule of Kent v. United States,13 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966), while of constitutional dimensions, made the resulting conviction merely “voidable.” In rejecting that argument the panel reasoned:
The rule announced in Burgett v. Texas, supra, cannot, as the district court assumed, be restricted to convictions obtained against defendants deprived of the right to counsel. It would be unthinkable that the government could, in obtaining a federal conviction, rely, for example, on a prior conviction obtained by use of a coerced confession. It would be equally unthinkable, particularly when the prior offense is an element of the federal crime, that the government could, in proving the crime, rely on a prior conviction based upon an illegal search or wiretap. We have not been informed of any considerations of social policy or even any plausible arguments which would support a principled distinction, for purposes of the Burgett v. Texas rule, between fourth, fifth, sixth, or fourteenth amendment violations. We hold that a Kent violation, implicating as it does significant due process rights in addition to the right to counsel, falls squarely within the prohibitions of Burgett v. Texas, supra; United States v. Tucker, supra; and Loper v. Beto, supra.
The majority opinion discusses Burgett v. Texas, supra, at some length. At one point the opinion attaches significance to the fact that Burgett was a right to counsel case.14 But elsewhere it qualifies any such significance by the broad hint, if not plain prediction, that even a felony conviction of an uncounselled defendant would support a firearms conviction and could not be collaterally attacked in such a prosecution.15 Moreover, the overall reasoning of Part III makes plain the majority viewpoint that the status of a convicted felon is alone sufficient to justify the statutory “disability” regardless of the legitimacy of the prior felony conviction.
Thus the majority has not merely rejected the reasoning of the original panel, which declined to accept the government’s tendered distinction between the Sixth Amendment right to counsel and other Fourth, Fifth or Fourteenth Amendment rights. Instead, it has said that no constitutional violation is an appropriate subject of collateral attack in a firearms violation prosecution.
The majority has gone out of the way to refer explicitly to the Fourth Amendment,16 but its reasoning is equally applicable to a conviction obtained by use of a coerced confession. This reasoning tacitly concedes the point made in the panel opinion that no considerations of social policy, or even any plausible arguments, would support the distinction which the government urges. However, instead of recoiling from the prospect that it would legitimize a sanction imposed by virtue of a conviction obtained by use of a coerced confession, or other constitutional violations, the majority enthusiastically embraces that extreme position. Even if Burgett v. Texas, supra; United States v. Tucker, supra; and Loper v. Beto, supra, had never been written I would find that embrace distasteful. In the face of those authorities the majority holding is plainly erroneous, at least with respect to the receiving and possession charge.17
IV
The panel opinion construed the references to convictions in 18 U.S.C. § 922(h) and 18 U.S.C. App. § 1202(a)(1) to refer to constitutionally valid convictions. Because the “false statement” provisions of 18 *92U.S.C. §§ 922(a)(6)18 and 924(a),19 cross-reference, respectively, to “fact[s] material to the lawfulness of the sale” and to “information required by the provisions of this chapter to be kept,” the panel concluded that the statement provisions required disclosure only of convictions referred to in the receiving and possession section — § 1202(a)(1). There is no language in the Omnibus Crime Control and Safe Streets Act of 1968,20 or the Gun Control Act of 1968,21 suggesting that the cross-references in §§ 922(a)(6) and 924(a), were intended to be read apart from the statutes’ substantive prohibitions.
One could, by a process of statutory redrafting, turn those sections into requirements for the disclosure of information whether or not material to the legality of the receipt or possession of the firearms. Such a reading, however, would ignore the language “material to the lawfulness of the sales.” The majority’s analysis does not turn, however, on whether § 922(a)(6) and § 924(a) cross-reference to the substantive prohibitions against receiving or possession. For the majority has construed § 1202(a) to be applicable even to felons in that status by virtue of unconstitutional convictions.
Obviously if that was the Congressional intention, disclosure of both constitutional and unconstitutional convictions would be material. However, in light of Burgett v. Texas and its progeny, I seriously doubt that Congress may constitutionally attach a continuing disability to the status of an unconstitutionally convicted felon. Could Congress, for example, pass a statute overruling Burgett? And in the absence of any explicit statutory language or legislative history, I would not attribute to Congress such an intention. Separating §§ 922(a)(6) and 924(a) from the substantive provisions to which they cross-reference, and treating them as independent reporting requirements, requires too much reconstruction for a criminal statute. If I believed that § 922(a)(6) and § 924(a) imposed independent reporting requirements I would agree that a conviction on Count I would be constitutional — but I do not so believe.
V
Because the majority holds that the constitutional validity of an unexpunged felony conviction may not be put in issue in a federal firearms prosecution it does not reach the question of burden of proof on that issue. The original panel concluded that the judgment of sentence should be reversed. It reasoned:
Since there would be no offense under either count of the indictment in the absence of a valid conviction, proof of such a conviction is an element of the government’s ease. That element can ordinarily be satisfied by evidence of the record of a prior conviction. But where, as here, the validity of that offense has been put in issue, the burden shifts to the government to prove that it was not invalid on the grounds which have been put in issue or that the defendant waived his constitutional rights.22 The precise issue of the *93standard of proof that the government must meet, however, has not been considered heretofore, but there are analogies. For example, in federal criminal trials the government may rely on the presumption of sanity until the “defense” of insanity has been raised. Then it must prove a defendant’s mental capacity beyond a reasonable doubt.23 A holding that after raising the issue of the invalidity of a prior conviction the defendant had to convince the trier of fact of such invalidity either by preponderance of the evidence or beyond a reasonable doubt, would be a significant departure from settled principles of federal criminal law. There is no evidence that Congress intended such a new departure in these two statutory provisions.
Since in this case the government chose to rest its case without any effort to establish the validity of the state court conviction on which it relied, the validity having properly been put in issue, the motion for a judgment of acquittal should have been granted.24 (Footnotes in quoted text renumbered and printed in margin).
For the reasons stated above, I would reverse the judgment of conviction.
. See, e. g., United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971).
. United States v. Fryer, 545 F.2d 11 (6th Cir. 1976) discussed convictions under both 18 U.S.C. § 922(a)(6) and 18 U.S.C. App. § 1202(a), but not in the context here presented.
. Cassity v. United States, 521 F.2d 1320 (6th Cir. 1975).
. 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967).
. United States v. Cody, 529 F.2d 564, 567 n. 4 (8th Cir. 1976) (dictum); United States v. Megura, 394 F.Supp. 246 (D.Conn.1975).
. Cases not applying Burgett v. Texas in a § 1202 context: United States v. Liles, 432 F.2d 18 (9th Cir. 1970). Cases applying Burgett v. Texas in a § 1202 context: United States v. Lufman, 457 F.2d 165 (7th Cir. 1972); United States v. DuShane, 435 F.2d 187 (2d Cir. 1970); United States v. Thoresen, 428 F.2d 654 (9th Cir. 1970).
. Cf. United States v. Bass, 404 U.S. 336, 343-44, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971) (differing tests for “in commerce or affecting commerce” under §§ 922 and 1202(a)).
. See Huddleston v. United States, 415 U.S. 814, 94 S.Ct. 1262, 39 L.Ed.2d 782 (1974) for a discussion of § 922(a)(6) generally.
. Graves’ answers, which appear in handwritten form on the original of this document, appear here capitalized and italicized.
. Cf. Barrett v. United States, 423 U.S. 212, 213 n. 2, 96 S.Ct. 498, 46 L.Ed.2d 450 (1976).
. The Supreme Court, in discussing § 922(a)(6) as it may be implemented by the use of Treasury Form 4473, has emphasized the “fair warning of the sanctions the law placets] on that [proscribed] conduct.” Huddleston v. United States, 415 U.S. at 831, 94 S.Ct. at 1272.
. See Maj. Op. at 70-71.
. Huddleston v. United States, 415 U.S, at 831, 94 S.Ct. 1262.
. Id. at 831, 94 S.Ct. at 1272, citing, inter alia, United States v. Bass, 404 U.S. 336, 348, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971) (discussing the problems of notice and “fair warning” in construing § 1202(a)).
. The firearms dealer may suffer consequences for failure to ask such a question under § 922(d)(1), but, as noted earlier, no specific requirement appears in § 922(a)(6) concerning an acquirer’s prior criminal convictions.
. Huddleston v. United States, supra, 415 U.S. at 831, 94 S.Ct. 1262.
. United States v. Bass, 404 U.S. 336, 339-51, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971).
. 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971).
. Id. at 347-49, 92 S.Ct. 515.
. 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967).
. 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972).
. 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972).
. I do not mean to suggest that no principled distinction exists for purposes other than the Burgett v. Texas rule. See, e. g., Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976) (Fourth Amendment).
. See United States v. Bass, supra.
. Brief for Appellee at 7.
Dameron cites a plethora of cases for this proposition including Pasterchik v. United States, 466 F.2d 1367 (9th Cir. 1972); United States v. Lufman, 457 F.2d 165 (7th Cir. 1972); McHenry v. California, 447 F.2d 470 (9th Cir. 1971); United States v. Thoresen, 428 F.2d 654 (9th Cir. 1970); and United States v. DuShane, 435 F.2d 187 (2nd Cir. 1970).
. E. g., Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967); United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972); Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972).
. E. g., Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976).
. See Part III of Majority Opinion.
. See Part II of Majority Opinion.
. Id. at 73.
. Cf. Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 341, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring); Rescue Army v. Municipal Court, 331 U.S. 549, 568-71, 67 S.Ct. 1409, 91 L.Ed. 1666 (1946).
. Majority Opinion at 82.
. In support of this holding the panel opinion relied on the following cases: Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); Holland v. United States, 348 U.S. 121, 138, 75 S.Ct. 127, 99 L.Ed. 150 (1954); Leland v. Oregon, 343 U.S. 790, 795, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952); Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); Davis v. United States, 160 U.S. 469, 488, 16 S.Ct. 353, 40 L.Ed. 499 (1895).
. Majority Opinion at 83.
. Majority Opinion at 72-73.
. See Olmstead v. United States, 277 U.S. 438, 470, 48 S.Ct. 564, 72 L.Ed. 944 (1928) (Holmes, J., dissenting).
. See Majority Opinion at 68 n. 6.
. Id. at 87.
. Id. at 82-83 n. 68.
. Id. at 42, n. 23.
. 18 U.S.C. App. § 1202.
. 18 U.S.C. § 922 provides:
(а) It shall be unlawful—
(б) for any person in connection with the acquisition ... of any firearm . from a licensed dealer knowingly to make any false or fictitious oral or written statement . intended or likely to deceive such . dealer . with respect to any fact material to the lawfulness of the sale or other disposition of such firearm or ammunition under the provisions of this chapter.
. 18 U.S.C. § 924(a) provides:
Whoever . knowingly makes any false statement or representation with respect to the information required by the provisions of this chapter to be kept in the records of a person licensed under this chapter, . . shall be fined not more than $5,000, or imprisoned not more than five years, or both, and shall become eligible for parole as the Board of Parole shall determine.
. Pub.L. 90-351, 82 Stat. 197 (codified in scattered sections of 5, 18, 18 App., 28, 42, 47 U.S.C.).
. Pub.L. 90-18, 82 Stat. 1213 (codified in scattered sections of 18, 18 App., 26 U.S.C.).
. United States v. Lufman, 457 F.2d 165, 166-67, n. 2 (7th Cir. 1972); United States v. DuShane, 435 F.2d 187, 190 (2d Cir. 1970).
. E. g., Government of Virgin Islands v. Bellott, 495 F.2d 1393 (3d Cir. 1974). See also United States v. Allegrucci, 258 F.2d 70 (3d Cir. 1958) (unexplained possession of recently stolen property); United States v. Barrasso, 267 F.2d 908 (3d Cir. 1959) (alibi defense); United States v. Marcus, 166 F.2d 497 (3d Cir. 1948) (alibi defense).
. 28 U.S.C. § 2106. See Sapir v. United States, 348 U.S. 373, 374, 75 S.Ct. 422, 99 L.Ed. 426 (1955) (Douglas, J., concurring); United States v. Alvarez, 519 F.2d 1036, 1049 (3d Cir. 1975).