ALDRICH, Chief Judge.
In spite of able argument by defendant's counsel we consider this appeal to be lacking in merit. Defendant's motion for acquittal was denied, and thereafter he was found guilty of making a false statement, to wit, of supplying a false name, address, and date of birth in connection with his acquisition of a firearm. 18 U.S.C. § 922(a) (6). Following a denial of two motions for new trial on the basis of newly discovered evidence, he appeals.
Defendant's primary contention is that the misrepresentation was not one of a "fact material to the lawfulness of the sale,"
With respect to both motions for new trial defendant takes the position that if the new evidence, if believed by the jury, would be likely to produce a different result, the district court erred in not granting a new trial. Defendant's burden is greater than this. In United States v. Johnson, 1946, 327 U.S. 106, 111, 66 S.Ct. 464, 466, 90 L.Ed. 562, the Court, in holding that a trial court need not reopen on the basis of such evidence if it did not credit it, and that the appeal from such determination was "devoid of merit," observed,
See also United States v. Silverman, 2 Cir., 1970, 430 F.2d 106, 119-120, cert. denied 402 U.S. 953, 91 S.Ct. 1619, 29 L.Ed.2d 123; Jones v. United States, 4 Cir., 1960, 279 F.2d 433, 435-436, cert. denied sub nom. Accardo v. United States, 364 U.S. 893, 81 S.Ct. 226, 5 L.Ed.2d 190. There are no extraordinary circumstances in the case at bar. The court was as entitled to resolve a disagreement between expert witnesses as any other. Its finding defendant's new evidence unpersuasive ends the matter.
Defendant next contends that 18 U.S.C. Chapter 44 (Firearms) is unconstitutional as applied in this case. He relies on United States v. Bass, 2 Cir., 1970, 434 F.2d 1296, which has since been modified by the Supreme Court in United States v. Bass, 1971, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488. The Court's ruling in Bass, that to establish a violation of 18 U.S.C. App. § 1202(a) proof that the receipt, possession or transportation of a firearm must involve interstate commerce, has no effect upon 18 U.S.C. § 922(b). Section 922(b) contains no analogous language from which a requirement that the transaction be in interstate commerce could be inferred. Nor does the absence of such a requirement render section 922(b) unconstitutional. That section regulates transactions with licensed dealers, whose general involvement with interstate commerce is ample to justify federal regulation of even their intrastate sales. See Katzenbach v. McClung, 1964, 379 U.S. 294, 85 S.Ct. 377, 13 L.Ed.2d 290; White v.
The verdict was warranted on the evidence. The fact that the testimony of the government's principal witness may have been thought somewhat inconsistent did not bar its acceptance by the jury.