I respectfully dissent from Section I of the above decision, and from the relief granted thereunder.
Batchelder was indicted and tried for the illegal receipt of a firearm under 18 U.S.C. § 922(h), supra, pp. 628-629. He was sentenced to five years imprisonment, as permitted by 18 U.S.C. § 924(a). Sections 922 and 924 are both part of Title IV of the Omnibus Crime Control Act of 1968. Title VII of that same Act contains another provision, codified as 18 U.S.C.App. § 1202(a). Besides defining substantive firearm offenses, it authorizes only two years imprisonment but permits a $10,000 fine, whereas § 924 permits five years custody and a fine of only $2,000. There are also differences between the offenses covered by § 922(h) and § 1202(a).
The principal difficulty posed by this case, in my opinion, is whether the co-existence of these two' sections affords the prosecutor an impermissible choice of remedies. *637I do not believe this discretionary choice violates any provision of the Constitution of the United States. Furthermore, the prosecutor’s choice is not prejudicial to a defendant; the sentencing judge exercises the choice by ultimately choosing the penalty.
Contrary to the majority, I find persuasive and applicable the long line of cases, several from our circuit, which hold that where an act may violate more than one criminal statute, the government may elect to prosecute under either, even if defendant risks the harsher penalty, so long as the prosecutor does not discriminate against any class of defendants. E. g., United States v. Beacon Brass Co., 344 U.S. 43, 73 S.Ct. 77, 97 L.Ed. 61 (1952); United States v. Harris, 558 F.2d 366 (7th Cir. 1977); United States v. Phillips, 522 F.2d 388 (8th Cir. 1975); United States v. Brown, 482 F.2d 1359 (9th Cir. 1973) (per curiam); United States v. Ruggiero, 472 F.2d 599 (2d Cir. 1973), cert. denied, 412 U.S. 939, 93 S.Ct. 2772, 37 L.Ed.2d 398 (1973); Mauney v. United States, 454 F.2d 273 (6th Cir. 1972) (per curiam); Hutcherson v. United States, 120 U.S.App.D.C. 274, 345 F.2d 964 (1965), cert. denied, 382 U.S. 894, 86 S.Ct. 188, 15 L.Ed.2d 151 (1965); Ehrlich v. United States, 238 F.2d 481 (5th Cir. 1956); United States v. Raddatz, 77 CR 325 (N.D. Ill. Feb. 6, 1978); United States v. Panetta, 436 F.Supp. 114, 129 n.31 (E.D.Pa.1977). Contra, United States v. Hairston, 437 F.Supp. 33 (N.D.Ill.1977). Although the rule is most often stated in terms of two statutes prohibiting the same act but requiring different elements of proof, I fail to see how the prosecutor’s discretion is any less when statutes also overlap on the question of punishment, if the defendant’s behavior can render him subject to indictment under either section.
In fact, whether the statutes in question are identical, as stipulated by the parties (see majority opinion supra n.2), or merely overlap depends upon the perspective from which they are viewed. Title IV which contains § 922 and § 924, and Title VII which contains § 1202(a), provide distinct statutory schemes. Section 922, with thirteen subsections, places specific and severe limitations on importing, exporting, receiving, purchasing, or selling various types of firearms and ammunition. Only subsections (g) and (h) of § 922 coincide with the coverage of § 1202, and even then not completely. Subsections (g) and (h) of § 922 prohibit a fugitive from justice, as well as one “who is under indictment for, or who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year,” from transporting or receiving, respectively, any firearm or ammunition which has been shipped in interstate commerce. Section 1202(a) prohibits not only receipt and transportation of a firearm which has been in interstate commerce, see United States v. Bass, supra, but also possession of such firearm. It prohibits possession of firearms also by any person who received an other than honorable discharge from the Armed Forces, has renounced his United States citizenship, or is an alien illegally in the United States.
Four courts have specifically held that the coincidence of the two statutory provisions now before the £ourt and the resulting prosecutorial discretion do not violate any constitutional guarantee. In United States v. Phillips, supra, 522 F.2d 388, 393 (8th Cir. 1975), the court relied on Congress’ apparent intent for both provisions to stand together and held that the prosecutor was free to choose either § 1202 or § 922. Accord, Mauney v. United States, supra, 454 F.2d 273, 274 (6th Cir. 1972); United States v. Raddatz, supra, 77 CR 325 (N.D.Ill. Feb. 6, 1978); United States v. Panetta, supra, 436 F.Supp. 114, 129 n.31 (E.D.Pa.1977).
The case at bar can be favorably compared with Hutcherson v. United States, supra, 120 U.S.App.D.C. 274, 345 F.2d 964 (1965). Defendant had been indicted and convicted under a federal statute for an offense which was also prohibited under the D.C.Code. The court held at 120 U.S.App. D.C. 277, 345 F.2d 967:
Hutcherson’s next contention is that the offenses denounced by the federal and local statutes are identical and that he was entitled to be prosecuted *638under the latter because the penalty for violating it is less severe than that provided by the federal statute. The theory is untenable. A defendant has no constitutional right to elect which of two applicable statutes shall be the basis of his indictment and prosecution. That choice is to be made by the United States Attorney. [footnote omitted].
In the case at bar, Judge Morgan was free to sentence Batchelder to two years or less — as prescribed under § 1202 — although he could and did sentence him to five years because Batchelder had been convicted of violating § 922(h). Rather than the prosecutor usurping the judge’s role in sentencing, the majority of this panel would restrict the trial judge’s discretion to enforce a federal statute. The only limitation which the prosecutor’s choice of § 922 placed on the judge’s sentencing is that the fine was limited to $2,000, whereas § 1202 would permit up to $10,000. Indeed, the logical extension of the majority opinion, notwithstanding its footnote 5, would be a judicial melding of §§ 924 and 1202, taking the two years imprisonment from § 1202 and the § 2,000 fine from § 924(a). Such judicial legislative patchwork has been strongly disapproved by the Supreme Court. See, e. g., United States v. Evans, 333 U.S. 483, 68 S.Ct. 634, 92 L.Ed. 823 (1948).
The majority relies on three rules of construction in holding that Batchelder must be resentenced under § 1202(a). The first is that if there is ambiguity in an act of Congress, such ambiguity should be resolved in favor of lenity. It applies to the instant case only if the inclusion of two almost identical subsections of overlapping provisions in one enactment properly may be characterized as an ambiguity. The majority so finds, although it does -acknowledge that on the floor of the Senate, Senator Long, who introduced § 1202 into the Act, and Congressman Machen in the House, characterized it as complementary to the scheme for gun control in Title IV (p. 629, supra).
The second principle noted by the majority holds that when Congress passes a statute virtually identical to one already on the books, a court can deem the new statute as implicitly repealing the old statute. However, both statutes in this case are part of the same Act; and although § 1202 was added by an amendment, the House-Senate conference did consider it at the same time as § 922 and as part of the same Act. Both sections were signed into law simultaneously-
The third principle relied on by the majority holds that where there is doubt as to the constitutionality of a statute, it should be construed to be constitutional. Pursuant to its citation of this principle, the majority suggests that such a statutory scheme may be void for vagueness.
Although the legislative history is less clear than it could be, I do not find any ambiguity in the presence of § 922(h) and § 1202(a) in the same statute. Each section is perfectly clear, and the inference is irre-buttable that the Congressional Conference Committee and the Congress read the entire bill, were aware of the two different penalties, and found it to express the intent of the majority.
There is additional evidence that Congress is unconcerned by the overlap between Titles IV and VII of the Omnibus Crime Control Act. In 1971, the Supreme Court held in United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971), that § 1202(a), like § 922(g), required proof that the weapon had passed through interstate commerce. Justice Blackmun, joined by Chief Justice Burger, dissented, stating, 404 U.S. at 356, 92 S.Ct. at 527:
The Court’s construction of •§ 1202(a), limiting its application to interstate possession and receipt, shrinks the statute into something little more than a duplication of 18 U.S.C. §§ 922(g) and (h). I cannot ascribe to Congress such a gesture of nonaccomplishment.
Yet neither the majority nor the dissenters in Bass suggested that prosecution under one or the other of these identical statutes would violate any constitutional prohibition. Having been put on notice that the Supreme Court read § 1202(a) and §§ 922(g) *639and (h) as proscribing identical behavior, Congress in seven years has made no move to amend or repeal either section.
Unlike the majority here, we find Berm v. United States, 351 U.S. 131, 76 S.Ct. 685, 100 L.Ed. 1013 (1956), (discussed at pp. 631-633, supra) more significant for the issues not addressed by its majority than for the reasoning in the dissent. The Berra court had before it two identical criminal statutes (see n.9 in majority opinion, supra), but the specific issue raised was whether the trial judge committed error when he refused to instruct the jury that it could find petitioner, who had been indicted under the statute carrying the greater maximum penalty, guilty under the statute carrying the lesser penalty, on the theory that the second statute described a lesser-included offense. The Court held that a separate, albeit identical, statute did not define a lesser-included offense merely because it prescribed a lesser punishment than the statute under which petitioner was indicted. In his dissent, Justice Black urged that it was wrong to allow a prosecutor to determine the severity of the offense for which defendant would be tried. He implied that vesting such discretion in a prosecutor violated guarantees of due process, but he cited no authority for his opinion. He merely concluded, “Substitution of the prosecutor’s caprice for the adjudicatory process is an action I am not willing to attribute to Congress in the absence of clear command.” 351 U.S. at 140, 76 S.Ct. at 691 (Black, J., with Douglas, J., dissenting).
A dissenting opinion, even by a respected constitutional scholar such as the late Justice Black, is weak authority on which to hold a statutory scheme to be of “questionable constitutionality.” That the Court did not reach the issue addressed in the dissent leads unavoidably to the inference that the other justices saw no significant constitutional question raised. Accord, Hutcherson v. United States, supra, 120 U.S.App.D.C. 274, 279 & n.3, 345 F.2d 964, 969 & n.3 (1965) (Burger, J., concurring).
In sum, I do not agree that the statutory scheme here under scrutiny is either ambiguous or unconstitutional. Congress explicitly afforded federal prosecutors two separate routes by which to prosecute persons who receive dangerous weapons. The violator knows the penalties he may be subjected to should he commit the offense; and, upon indictment, he is unambiguously apprised of the maximum fine and prison term by the appropriate statutory citation. The prosecutor’s exercise of discretion in choosing whether to seek an indictment under § 922(h) or § 1202(a) is so limited, and so easy for the sentencing judge to mitigate when the more punitive section is used, that I see no opportunity for, nor is there before us an allegation of, abusive or arbitrary exercise of prosecutorial discretion. I would affirm.