United States v. Kirk ( 1995 )

UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
No. 94-50472
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIAM J. KIRK,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
November 7, 1995
Before POLITZ, Chief Judge, and JONES and PARKER, Circuit Judges.
ROBERT M. PARKER:
The appellant, William J. Kirk, entered a conditional guilty
plea in the district court to one count of unlawful possession of
a machinegun under 18 U.S.C. § 922(o).1 On appeal, Kirk challenges
the indictment and the district court's sentence calculation.
Finding no error, we affirm.
I. FACTS
On September 1, 1988, Kirk offered to sell a machinegun to
Donald Mueller. From September 1988 through January 4, 1989, Kirk
attempted to sell various unregistered machineguns to Mueller. On
1. "Machinegun" is defined in 26 U.S.C. § 5845(b) as "any
weapon which shoots, is designed to shoot, or can be readily
restored to shoot, automatically more than one shot, without manual
reloading, by a single function of the trigger."
January 4, 1989, Kirk agreed to sell Mueller an M-16 machinegun for
$1,200.00. Mueller then went with Kirk to a rifle range in
Dripping Springs, Texas where they obtained certain parts necessary
for a machinegun conversion. Kirk used the parts to convert a
semi-automatic EA Company Rifle, .223 caliber, model J-15, to a
machinegun. Kirk and Mueller test-fired the converted machinegun
with blank ammunition, and the transaction was completed.
On February 12, 1989, Kirk made arrangements with Mueller to
sell him an UZI machinegun for $1,100.00 in cash plus a $900.00
commercial welder. On February 21, 1989, at the same rifle range,
the cash and welder were exchanged for an Action Arms Limited UZI
carbine, Model A, 9 millimeter bearing serial number SA32084, which
had been converted to a machinegun by the addition of an UZI
machine bolt. Mueller test-fired the UZI in the fully automatic
mode. John M. Clark accompanied Mueller on February 21 and
witnessed the transaction. Apparently, through Mueller's
cooperation, a number of the meetings and conversations between
Kirk and Mueller were monitored by the Bureau of Alcohol, Tobacco
and Firearms.
Kirk was arrested November 28, 1989. He was charged with
firearms violations in eight counts of a ten-count superseding
indictment. On the day trial was scheduled, Kirk pled guilty to
one count, charging unlawful possession of an unregistered firearm
in violation of 26 U.S.C. § 5861(d). Kirk appealed his conviction,
arguing that section 5861 had been implicitly repealed by the
passage of 18 U.S.C. § 922(o). Based on authority from other
2
circuits supporting Kirk's argument, the parties jointly moved to
remand the case to the district court for dismissal of the
conviction under Rule 48(a) of the Federal Rules of Criminal
Procedure.2
After the first conviction was set aside, Kirk was charged on
December 21, 1993 in a four-count indictment with violations of 18
U.S.C. § 922(o): unlawful possession of a machinegun on January 4,
1989 (Count One); unlawful transfer of a machinegun on January 4,
1989 (Count Two); unlawful possession of a machinegun on February
21, 1989 (Count Three); and unlawful transfer of a machinegun on
February 21, 1989 (Count Four). Kirk filed a motion to dismiss the
indictment, arguing that section 922(o) was unconstitutional
because it exceeded the power of the federal government under the
Commerce Clause and because the indictment failed to allege a
connection with interstate commerce. Kirk also challenged his
prosecution on the basis of the plea agreement entered in the first
prosecution and on the basis of double jeopardy. The district
court overruled these contentions. Kirk entered a conditional
guilty plea to count one of the indictment, preserving the right to
appeal the district court's rulings.
Kirk was sentenced on June 24, 1994. In calculating Kirk's
sentencing range under the sentencing guidelines, the district
court increased the defendant's offense level for obstruction of
2. FED. R. CRIM. P. 48(a) provides, in relevant part, "The
Attorney General or the United States attorney may by leave of
court file a dismissal of an indictment, information or complaint
and the prosecution shall thereupon terminate."
3
justice. The district court sentenced Kirk to a term of
imprisonment of twelve months and one day, a term of supervised
release of three years, a fine of $3,000.00 and a special
assessment. The defendant timely filed this appeal.
II. DISCUSSION
A.
Kirk first contends that the district court erred in denying
his motion for specific performance of his prior plea agreement.
Kirk claims that as part of the first plea agreement in 1991, the
government promised that if Kirk were successful on appeal, it
would not bring a subsequent prosecution based on the same conduct.
Thus, Kirk argues, the subsequent prosecution was barred by that
prior agreement.
If a plea agreement exists, and a plea of guilty has been in
some way induced by a promise, it is essential to the fairness of
the proceeding that the promise be fulfilled. Santobello v. New
York, 404 U.S. 257, 262, 92 S. Ct. 495, 499 (1971). This circuit
requires the government to strictly comply with the agreements it
makes with defendants. United States v. Chagra, 957 F.2d 192, 194
(5th Cir. 1992). A court's inquiry regarding whether a particular
promise induced a guilty plea does not necessarily end with a
reading of the written agreement. Evidence of discussions
surrounding the negotiations of the written agreement may establish
the existence of a promise. United States v. Williams, 809 F.2d
1072, 1079 (5th Cir. 1987), cert. denied, 484 U.S. 896 (1987). We
4
will reverse a district court's findings in this regard only if
clearly erroneous. Id.
At a hearing in the district court, Kirk testified that at the
time he was deciding to plead guilty in 1991, the assistant U.S.
attorney told him that he could appeal his conviction based on the
constitutionality of the statute, and that if he was successful the
government would not bother him any more. However, the AUSA,
Gerald Carruth, testified that there was no agreement not to pursue
other charges if the conviction did not stand up. In fact, Carruth
testified that at no time did the government agree to "give up" if
Kirk's appeal was successful.
The written plea agreement presented in January 1991 contained
only the agreement to dismiss the other charges at sentencing and
the standard language regarding the government's right to proceed
with prosecution should the defendant withdraw his guilty plea
prior to sentencing. The written agreement contained no promise
not to re-prosecute in the event Kirk's appeal was successful. The
record on appeal also reveals that at the plea hearing held January
23, 1991, after the plea agreement was presented to the district
court, the court inquired "Has anyone made any promise to you other
than the plea agreement that induced you to plead guilty?" The
defendant responded "No, sir."
The district court found, based on the evidence presented,
that the defendant entered into the first plea agreement because of
the strength of the evidence against him, including recorded
conversations, and not because of any promise not to prosecute in
5
case of a successful appeal. In addition, the district court found
that the defendant had not established by a preponderance of the
evidence that AUSA Carruth made the alleged promise. This finding
was based on the testimony of the defendant and the attorneys
involved and necessarily depended on an evaluation of credibility
by the district court.
"It is not this Court's function to pass on a district court's
determination regarding the credibility of witnesses." United
States v. Alaniz-Alaniz, 38 F.3d 788, 791 (5th Cir. 1994), cert.
denied, 115 S. Ct. 1412 (1995). Given the testimony of the
parties, there were two permissible views of the evidence. The
district court chose one view based on its ability to weigh the
evidence and evaluate the credibility of the witnesses. Under
these circumstances, we cannot hold that the district court's
findings are clearly erroneous.
B.
The appellant next argues that his prosecution under section
922(o) violated his rights under the Double Jeopardy Clause of the
Fifth Amendment because he had been placed in jeopardy for the same
conduct in the previous prosecution under 26 U.S.C. § 5861(d). As
noted above, the instant prosecution under section 922(o) was not
commenced until after the prosecution under 26 U.S.C. § 5861(d) was
dismissed because of a perceived infirmity.3
3. The government decided the initial prosecution should be
dismissed based on the Tenth Circuit's holding in United States v.
Dalton, 960 F.2d 121 (10th Cir. 1992) that the enactment of 18
U.S.C. § 922(o) implicitly repealed 26 U.S.C. § 5861(d). This
Court subsequently disagreed with the Tenth Circuit on this
6
The Double Jeopardy Clause provides that no person shall "be
twice put in jeopardy of life or limb" for the "same offence."
U.S. CONST. amend. V.
It has long been settled, however, that the Double
Jeopardy Clause's general prohibition against successive
prosecutions does not prevent the government from
retrying a defendant who succeeds in getting his first
conviction set aside, through direct appeal or collateral
attack, because of some error in the proceedings leading
to the conviction.
Lockhart v. Nelson, 488 U.S. 33, 38, 109 S. Ct. 285, 102 L. Ed. 2d
265 (1988). The exception to this rule, not applicable in this
case, is that if the defendant succeeds in having his first
conviction set aside on the ground that the evidence presented was
insufficient, a re-prosecution is barred because the defendant was
entitled to an acquittal at the first trial. Lockhart, 488 U.S. at
39, 109 S. Ct. at 290; Burks v. United States, 437 U.S. 1, 98 S.
Ct. 2141, 57 L. Ed. 2d 1 (1978).
The first prosecution in the present case was set aside not
by a court's determination that there was error, but by agreement
of the parties that, according to persuasive authority, the statute
under which Kirk was convicted had been implicitly repealed. This
is the type of trial error to which the general rule of Lockhart
applies. It makes no difference that this Court's review of the
first conviction was preempted by motion of the government under
Rule 48 of the Federal Rules of Criminal Procedure. Thus, the
prosecution of Kirk under 18 U.S.C. § 922(o), after a prosecution
question in United States v. Ardoin, 19 F.3d 177 (5th Cir.), cert.
denied, 115 S. Ct. 327 (1994).
7
dismissed for a perceived "defect in the charging instrument," does
not offend the Double Jeopardy Clause. See Montana v. Hall, 481
U.S. 400, 403, 107 S. Ct. 1825, 1827, 95 L. Ed. 2d 354 (1987).4
C.
Kirk also challenges his conviction on the ground that 18
U.S.C. § 922(o) is unconstitutional. Section 922(o) provides, in
relevant part,
(o)(1) Except as provided in paragraph (2), it shall be
unlawful for any person to transfer or possess a
machinegun.
(2) This subsection does not apply with respect to --
* * *
(B) any lawful transfer or lawful possession of a
machinegun that was lawfully possessed before the date
this subsection takes effect.
The effective date of this provision was May 19, 1986. Kirk
contends that this section is unconstitutional because it is beyond
the authority granted to Congress under the Commerce Clause. We
must analyze this contention in light of the Supreme Court's recent
pronouncement in United States v. Lopez, 115 S. Ct. 1624, 131 L.
Ed. 2d 626 (1995).5
In Lopez, the Supreme Court addressed the constitutionality of
the Gun Free School Zones Act of 1990, 18 U.S.C. § 922(q). Section
922(q) made it unlawful "for any individual knowingly to possess a
4. On this point, we agree with the Tenth Circuit. See
United States v. Dalton, 990 F.2d 1166 (10th Cir.), cert. denied,
114 S. Ct. 253 (1993).
5. In addition, to the extent not inconsistent with the
Supreme Court's pronouncement, we are bound by our opinion in Lopez
as the law of the circuit. United States v. Lopez, 2 F.3d 1342
(5th Cir. 1993).
8
firearm at a place that the individual knows, or has reasonable
cause to believe, is a school zone." The Supreme Court affirmed
this Court's ruling that section 922(q) was beyond the scope of the
Commerce power, and thus was unconstitutional.
In evaluating section 922(q)'s constitutionality, the Supreme
Court described three categories of activity which Congress could
regulate under the Commerce Clause:6 (1) the use of the channels of
interstate commerce; (2) "the instrumentalities of interstate
commerce, or persons or things in interstate commerce, even though
the threat may come only from intrastate activities"; and (3)
activities which have "a substantial relation to interstate
commerce . . . i.e., those activities that substantially affect
interstate commerce." Lopez, 115 S. Ct. at 1629-30. The Court
held that section 922(q) did not fall within the first two
categories because it did not regulate the channels or
instrumentalities of interstate commerce. Thus, the Court
evaluated section 922(q) under the third category to determine
whether it was a regulation of an activity that substantially
affected interstate commerce.
The Supreme Court held that section 922(q) "by its terms has
nothing to do with ``commerce' or any sort of economic enterprise,
however broadly one might define those terms." Id., 115 S. Ct. at
1630-31. The Court also held that "possession of a gun in a local
school zone is in no sense an economic activity that might, through
6. "The Constitution delegates to Congress the power ``[t]o
regulate Commerce with foreign Nations, and among the several
States, and with the Indian Tribes.'" Lopez, 115 S. Ct. at 1626.
9
repetition elsewhere, substantially affect any sort of interstate
commerce." Id., 115 S. Ct. at 1634. Thus, the Court found section
922(q) unconstitutional under the Commerce Clause.
Although Lopez is instructive regarding the proper Commerce
Clause analysis, it does not control the result in our analysis of
section 922(o). We are not the first court to address section
922(o) in light of Lopez. In this regard, we have the benefit of
the Tenth Circuit's opinion in United States v. Wilks, 58 F.3d 1518
(10th Cir. 1995). The Wilks court held that "unlike § 922(q), §
922(o) embodies a proper exercise of Congress' power to regulate
``things in interstate commerce' -- i.e., machineguns." Id. at
1521. "The interstate flow of machineguns," the court said, "``not
only has a substantial effect on interstate commerce; it is
interstate commerce.'" Id. (quoting United States v. Hunter, 843
F. Supp. 235, 249 (E.D. Mich. 1994). We agree.
It is particularly important to our determination that section
922(o) prohibits the private possession or transfer of machineguns
only if they were not lawfully possessed prior to May 19, 1986. 18
U.S.C. § 922(o). Thus, transfer or possession of a machinegun is
unlawful under this section only if it was manufactured or
illegally transferred after May 19, 1986. It is clear, therefore,
that the activity Congress intended to prohibit by application of
section 922(o) was the introduction into the stream of commerce
machineguns manufactured, imported, or otherwise illegally
obtained, after the effective date of the act. When read as a
whole, it is plain that the activities prohibited by section 922(o)
10
constitute commerce.7 We recognized the difference between this
regulation and the Gun Free School Zones Act in our opinion in
United States v. Lopez, 2 F.3d 1342 (5th Cir. 1993):
Section 922(o) is restricted to a narrow class of highly
destructive, sophisticated weapons that have been either
manufactured or imported after enactment of the Firearms
Owners Protection Act, which is more suggestive of a
nexus to or affect on interstate or foreign commerce than
possession of any firearms whatever, no matter when or
where originated, within one thousand feet of the grounds
of any school.
2 F.3d at 1356 (emphasis in original; footnote omitted).
Defendant Kirk attempts to avoid section 922(o)'s relation to
interstate commerce by characterizing the alleged "crime" in this
7. The dissent contends that we have misconstrued the plain
language of the statute in coming to this conclusion. Rather than
considering the scope of the prohibition in section 922(o), the
dissent prefers to discuss mere possession in a vacuum. The
dissent attempts to justify its narrow perspective by noting that
the offense of conviction implicated only unlawful possession, an
offense distinct from unlawful transfer thanks to a disjunctive
connector. The true indicator of the statute's scope, however, is
found not in subsection (1), but in subsection (2) which excludes
certain transfers and possessions from the prohibitions found in
subsection (1).
Following the dissent's approach, viewing similar
prohibitions against mere possession in isolation, we would be
required to strike down other federal criminal statutes that thus
far have been upheld. See, for example, 21 U.S.C. §844(a)
(prohibiting simple possession of controlled substances in context
of broader prohibitions against manufacture or distribution of same
in the Drug Abuse Prevention and Control Act); 21 U.S.C. §843(a)(5)
(prohibiting possession of equipment designed to mark or label
counterfeit drugs in context of prohibition against making or
distributing same); 18 U.S.C. § 2342(a) (prohibiting possession of
contraband cigarettes in context of broader prohibition against
commercial transfer of same). See also 18 U.S.C. §842(j)
(prohibiting "mere" storage of any explosive material in a manner
not conforming to federal regulations in context of federal
restrictions on manufacture, import, purchase, and distribution of
same).
11
case as "mere possession" of a machinegun.8 At the same time,
however, Kirk challenges the constitutionality of section 922(o) on
its face. In evaluating this type of challenge, we must
necessarily consider the scope of section 922(o). As noted above,
the "possession" prohibited by section 922(o) is limited to
possession of machineguns not lawfully possessed before the
effective date of the act. To put it simply, there could be no
unlawful possession under section 922(o) without an unlawful
transfer. In this context, the limited ban on possession of
machineguns must be seen as a necessary and proper measure meant to
allow law enforcement to detect illegal transfers where the banned
commodity has come to rest: in the receiver's possession. In
effect, the ban on such possession is an attempt to control the
interstate market for machineguns by creating criminal liability
for those who would constitute the demand-side of the market, i.e.,
those who would facilitate illegal transfer out of the desire to
acquire mere possession.
Thus, section 922(o) falls into the first category identified
by the Supreme Court in Lopez: a regulation of the use of the
channels of interstate commerce. In other words, section 922(o) is
a regulation which attempts "to prohibit the interstate
transportation of a commodity through the channels of commerce."
115 S. Ct. at 1630. This type of regulation is within the commerce
8. The offense to which Kirk pled guilty was unlawful
"possession" of a machinegun in violation of 18 U.S.C. § 922(o).
The counts charging Kirk with unlawful "transfer" were dismissed
pursuant to Kirk's plea bargain.
12
power even though, admittedly, some of the activity made unlawful
is purely intrastate. As with federal regulation of controlled
substances, see 21 U.S.C. § 801, et seq., there is a rational basis
to conclude that federal regulation of intrastate incidents of
transfer and possession is essential to effective control of the
interstate incidents of such traffic. Therefore, we hold that the
prohibition of transfer or possession of post-1986 machineguns in
18 U.S.C. § 922(o) is a rational exercise of the authority granted
Congress under the Commerce Clause.9
D.
Finally, with regard to his sentence, Kirk argues that the
district court erred in applying the enhancement for obstruction of
justice under section 3C1.1 of the federal sentencing guidelines.
That section provides
If the defendant willfully obstructed or impeded, or
attempted to obstruct or impede, the administration of
justice during the investigation, prosecution, or
sentencing of the instant offense, increase the offense
level by 2 levels.
United States Sentencing Commission, Guidelines Manual, § 3C1.1
(Nov. 1994).10 Kirk contends that the conduct for which the two
9. Kirk also argues that his conviction cannot be valid under
the Commerce Clause because section 922(o) does not require a
showing that a particular unlawful possession substantially affects
interstate commerce. However, where, as here, Congress has the
power to regulate a particular class of activity because of its
relation to interstate commerce, there is no requirement that a
substantial effect be shown in each particular case. See United
States v. Nelson, 458 F.2d 556 (5th Cir. 1972). Because of our
holding above we need not address this argument further.
10. Because of the dates of Kirk's offense conduct, and
because of ex post facto considerations, the 1988 edition of the
Guidelines Manual was used in this case. However, the text of
13
level increase was imposed was not related to the "instant offense"
as required by this Guideline.
According to the Presentence Investigation Report, Kirk
contacted John M. Clark after a search warrant was executed at
Kirk's place of business but before he was indicted or arrested.
Clark was present on February 21, 1989, when Kirk converted an UZI
carbine from semi-automatic to fully automatic and test-fired the
weapon at the rifle range. Kirk instructed Clark not to cooperate
with authorities concerning his knowledge of these events. The
offense to which Kirk pled guilty involved possession of a
machinegun on January 4, 1989. Kirk argues that because Clark's
knowledge of Kirk's activities did not relate specifically to this
event, his attempted obstruction did not relate to the offense of
conviction, and therefore did not relate to the "instant offense"
as required by section 3C1.1.
Kirk cites three decisions from other circuits that support
his position. See United States v. Bagwell, 30 F.3d 1454 (11th
Cir. 1994); United States v. Woods, 24 F.3d 514 (3d Cir. 1994);
United States v. Perdomo, 927 F.2d 111 (2d Cir. 1991). However,
after a careful reading of section 3C1.1, we must respectfully
disagree with these decisions. Instead, we find the reasoning of
the Sixth Circuit persuasive.
In United States v. Crousore, 1 F.3d 382 (6th Cir. 1993), the
court addressed the same argument Kirk presents in the present
section 3C1.1 as currently written does not differ in any material
respect from the version applied in this case.
14
case. In rejecting the defendant's argument, the court said
This guideline [§ 3C1.1] applies to conduct during the
investigation, prosecution, and sentencing of the instant
offense, i.e., the offense for which the defendant is
being sentenced under the Guidelines.
* * *
Whether [the defendant's] lie was about his guilt on the
specific charges to which he pleaded guilty is not an
issue under § 3C1.1.
* * *
Therefore, the test is not whether the false statement
[obstruction] was about the actual crime charged, but
whether it was made during the investigation,
prosecution, or sentencing of the "instant offense."
1 F.3d at 385. The court also noted that an attempt to conceal
trivial or immaterial information would not warrant the obstruction
enhancement. "Material information is information that, if
believed, would tend to influence or affect the issue under
determination." Id.
We agree with the Sixth Circuit. The enhancement for
obstruction of justice under section 3C1.1 is proper anytime the
defendant has concealed or attempted to conceal information
material to the investigation, prosecution, or sentencing of the
instant offense. Although this Guideline clearly contemplates a
relationship between the information concealed and the offense
conduct, it does not require that it be related directly to a
particular offense to which the defendant pleads guilty. To hold
otherwise would make the sentencing court's ability to consider
obstructive behavior dependent on the offense in a multiple-count
indictment the parties choose to make the subject of a plea
bargain.
It is clear in the present case that at the time Kirk
15
solicited Clark's aid in impeding the government's investigation,
Clark's personal knowledge of the events on February 21, 1989 were
material to the investigation and prosecution of the firearms
offenses on which Kirk was ultimately indicted. The "instant
offense" was one of those offenses. Thus, the district court's
application of the 3C1.1 enhancement was not error.
III. CONCLUSION
For the foregoing reasons, the appellant's conviction and
sentence are AFFIRMED.
EDITH H. JONES, Circuit Judge, dissenting.
The United States Supreme Court returned federalism to
constitutional doctrine in recently deciding, in United States v.
Lopez, ___ U.S. ___, 115 S. Ct. 1624 (1995), that Congress exceeded
its power under the Commerce Clause when it banned the possession
of firearms near a school. 18 U.S.C. § 922(q)(1)(A) (1988 ed.,
Supp II). This case poses remarkably similar constitutional
questions arising from 15 U.S.C. § 922(o), a companion provision to
Section 922(q). Appellant Kirk contends that the Court's reasoning
in Lopez also renders unconstitutional Congress's attempt, in
Section 922(o), to ban11 possession of any "machine gun"12 that was
11
One commentator, writing shortly after Section 922(o) was passed as
part of the Firearms Owners' Protection Act, Pub. L. No. 99-308, 100 Stat. 449
(1986), declined to characterize this Section as a "ban" on machine gun possession,
noting that possession of machine guns was still permitted "under the authority" of
the United States or any lesser political subdivision or as a result of the
grandfather clause for weapons "lawfully" possessed before 1986. Hardy, David T.,
The Firearms Owners' Protection Act: A Historical and Legal Perspective, 17
Cumberland L. Rev. 585, 668-670 (1987). Hardy, however, advocated a narrower
16
not "lawfully" possessed before the provision passed in 1986.
Acknowledging that Lopez does not control this case, I nevertheless
see no meaningful distinction between Section 922(q) and Section
922(o) as the latter applies to possession, not transfer, of
machine guns. I also believe that Section 922(o) cannot be upheld
as a more direct exercise of Congressional commerce power. I
therefore respectfully dissent.
The majority have accurately described Lopez's
recapitulation of the jurisprudence of the Commerce Clause. Thus,
it is settled that the Congressional power over interstate commerce
extends to (1) regulating the use of channels of interstate
commerce; (2) regulating and protecting the instrumentalities of
interstate commerce, or persons or things in interstate commerce,
even though the threat may come only from intrastate activities;
and (3) regulating intrastate activities that have a substantial
effect on interstate commerce. 115 S. Ct. at 1629-30.
But while Lopez evaluated the ban of firearms near a
school under the "affecting commerce" strand of jurisprudence, the
majority here have concluded that the ban on possession of machine
guns constitutes either a regulation of the "channels of interstate
construction of the statute than has been utilized by the government here; the
government construes Section 922(o) to ban private possession of machine guns
produced or unlawfully transferred after 1986.
12
The term "machine gun" is defined for federal regulatory purposes in
26 U.S.C. § 5845(b). As this court's en banc opinion found, however, not all
machine guns so defined are Uzis or AK-47's. They include conventional firearms
that have been modified or altered by wear and tear to commence "firing when the
trigger is depressed and continue[] "firing until it is released, or the weapon's
supply of ammunition is exhausted." United States v. Anderson, 885 F.2d 1248, 1249,
n.3 (5th Cir. 1989).
17
commerce or of things moving in interstate commerce." This
analysis, in my view, misinterprets those two broad categories of
Commerce Clause power and ultimately conflates them with the third.
Moreover, the affecting commerce category, relied upon by the
federal government's brief to this court, cannot sustain Section
922(o) under the logic of Lopez.
The fundamental mistake by the majority lies in their
misconstruction of the plain language of the statute. Although the
majority deem the ban on possession of "machine guns" to regulate
the channels of interstate commerce or things in interstate
commerce, neither Section 922(o) nor its legislative history
supports that position. The statute is not limited to possession
in or even affecting interstate commerce or to possession of a
firearm that has traveled in interstate commerce. Rather, it
criminalizes the mere private possession of a machine gun.
The majority infer from the fact that Section 922(o)
prohibits "transfer" as well as "possession" that channels or
things in interstate commerce were intended to be regulated. This
inference seems unwarranted for two reasons. First, transfer as
well as possession of a thing can be of a wholly intrastate
character. Second, when the government criminalizes conduct in the
disjunctive, it may prosecute separately each type of conduct
disjunctively named. Thus, as in this case, possession alone is
criminalized independent of any transfer of a machine gun. We need
not and ought not consider here the constitutionality of the
Section 922(o) restriction on transfers of machine guns.
18
The majority also seek advantage from the nature of the
weapons banned and the statute's prospective scope, citing a
passage from this court's decision in Lopez:
Section 922(o) is restricted to a narrow class
of highly destructive, sophisticated weapons
that have been either manufactured or imported
after enactment of the Firearms Owners
Protection Act, which is more suggestive of a
nexus to or effect on interstate or foreign
commerce than possession of any firearms
whatever, no matter when or where originated,
within 1,000 feet of the grounds of any
school.
2 F.3d at 1556 (emphasis in original, footnote omitted). Neither
of these features of the law, however, renders it more closely or
more necessarily connected to the regulation of interstate
commerce. Congress's power to regulate interstate commerce does
not depend on the value or dangerousness of the item regulated, but
upon its connection with interstate commerce. Obviously, eggs as
well as toxic chemicals can be regulated if they have the
appropriate nexus to interstate commerce. Further, the grandfather
clause of the ban, making it effective only after 1986, fails to
enhance its relation to interstate commerce.13 After 1986, both
interstate and wholly intrastate private possessions are banned,
and there are no Congressional findings that this most drastic
impact upon intrastate activity, otherwise subject to local police
power, was required by the ineffectiveness of prior federal machine
13
The effect of the grandfather clause does, paradoxically, assure a
nexus between interstate commerce and criminal possession of pre-1986 unlawfully
possessed machine guns, because, as this court's Lopez opinion noted, pre-1986
regulatory laws expressly embodied a jurisdictional nexus to commerce. See Lopez,
2 F.3d at 1356, n.29.
19
gun regulation. Section 922(o), in sum, does not expressly or by
necessary implication appertain to the channels of interstate
commerce or to regulation of things in interstate commerce.
Because Section 922(o) reaches wholly intrastate, non-
commercial possession, the provision poses the constitutional
question avoided by the Supreme Court when it interpreted a federal
statute criminalizing a felon's possession of a firearm. 18 U.S.C.
§ 1202(a); United States v. Bass, 404 U.S. 336, 92 S. Ct. 515
(1971). The government prosecuted appellant Bass without
demonstrating any connection between his possession and interstate
commerce, because the statute did not clearly require a nexus.
Noting the ambiguity of the both the statute and legislative
history concerning whether interstate commerce was jurisdictionally
invoked, the Court declined to accept broad construction of the
statute and "render[] traditionally local criminal conduct a matter
for federal enforcement and . . . [promote] a substantial extension
of federal police resources." 404 U.S. at 351, 92 S.Ct. at 524.
By inferring a requirement that the possession be "in commerce or
affecting commerce," the Court avoided a significant intrusion on
the traditional federal-state balance. 404 U.S. at 350, 92 S.Ct.
at 523. A more far-reaching intrusion on state police power is
carried out by Section 922(o), but unlike Bass, no saving
construction is available.
The majority do not rely on legislative history
concerning Section 922(o), for there is virtually none, and it says
nothing about interstate commerce. There appears to be only one
20
recorded statement by its legislative sponsor, Representative
Hughes, in the Congressional Record:
I do not know why anyone would object to the
banning of machine guns.
132 Cong. Rec. H1750 (April 10, 1986) (statement of Rep. Hughes).
Section 922(o) was incorporated as Section 102(9) of the Firearms
Owners' Protection Act, 100 Stat. 452-53, but no other reference to
it appears in the committee reports or elsewhere in legislative
history, with the exception of a brief Senate colloquy concerning
the scope of the exemption for government-authorized machine guns.14
Despite the absence of textual or legislative historical
support for their interpretation, the majority conclude that
Section 922(o) "is an attempt to control the interstate market for
machine guns by creating criminal liability for those who would
constitute the demand-side of the market . . .". Accordingly, the
majority first upholds the possession ban as a regulation of the
use of channels of interstate commerce. I respectfully disagree.
Even accepting the majority's cause-and-effect rationale, mere
intrastate possession of a machine gun is not a use of the channels
of interstate commerce any more than mere intrastate possession of
a basketball. Compare Heart of Atlanta Motel, Inc. v. U.S., 379
U.S. 241, 257, 85 S. Ct. 348, 357-58 (1964).
The majority also rely upon a recent Tenth Circuit case
that upheld Section 922(o) as a regulation of things in commerce,
i.e. interstate traffic in machine guns. U.S. v. Wilks, 58 F.3d
14
See discussion of legislative history in Hardy, supra n.1, at 671-74
and n.461, 462, 463.
21
1518 (10th Cir. 1995). Decided after the Supreme Court's decision
in Lopez, Wilks considered the Section 922(o) ban on machine gun
possession functionally indistinguishable from previous laws, such
as the 1968 Gun Control Act, which had extended federal control
over interstate and foreign commerce by regulating all persons
engaged in the business of importing, manufacturing, or dealing in
firearms. Wilks, 58 F.3d at 1521-22. The court used the
statements of Congressional findings and purposes in the previous
laws to defend Congress's further step of banning private machine
gun possession in Section 922(o) as if it were a part of the
seamless web of regulation of the firearms business.15 For several
reasons, I must disagree with Wilks. First, none of those laws
purported to ban possession of firearms unrelated to interstate
commerce. Compare United States v. Bass, supra. As Judge
Garwood's opinion in Lopez painstakingly demonstrates, all previous
federal gun control laws have been expressly tied to the conduct of
the firearms business, a business whose inter- and intra-state
activities are not only commingled but clearly "commercial". See
Lopez, 2 F.3d 1348-57.
Second, the overall structure and history of the Firearms
Owners' Protection Act (FOPA), in which Section 922(o) originated,
15
Wilks abandoned, as it had to, the erroneous references to legislative
history on which pre-Lopez opinions of the Eighth and Ninth Circuits relied in
upholding Section 922(o). See United States v. Hale, 978 F.2d 1016, 1015 (8th Cir.
1992), cert. denied, ____ U.S. ____, 113 S. Ct. 1614 (1993); United States v. Evans,
928 F.2d 858 (9th Cir. 1991). These cases drew a connection between Section 922(o)
and interstate commerce based upon legislative history from earlier, unpassed
legislation. This court criticized such reliance in United States v. Lopez, 2 F.3d
at 1356-57; the Supreme Court's decision in Lopez undermined other aspects of those
courts' reasoning; and Wilks appropriately discards the discredited reasoning.
22
suggests no general Congressional determination that possession of
machine guns necessarily implicates interstate commerce. Judge
Garwood's opinion in Lopez explains that the Act focused on
regulating transfers of firearms, including express Congressional
findings that transfer by non-federal-licensees to "disqualified
persons" must be controlled to prevent evasion of license
regulations. Lopez, 2 F.3d 1354-55. Other amendments effected by
that statute dealt with provisions which already expressed an
interstate commerce nexus without diluting those requirements. Id.
The preamble of the legislation expressed Congress's desire not to
"place any undue or unnecessary Federal restrictions or burdens on
law-abiding citizens with respect to the . . . possession or use of
firearms appropriate to . . . any lawful activity. . . ." P.L. 99-
308 § 100 stat. 449. Section 922(o) stands isolated from the rest
of the FOPA because it conspicuously lacks either a nexus to
commerce or the support of findings that banning mere intrastate
possession of machine guns is essential to effectuate federal
regulation.
Third, banning the possession of machine guns represents
a logical extreme of federal regulation but also the negation of
the pre-existing regulatory structure as to those firearms. Wilks,
however, imports the same Congressional findings that regulated
transfers of firearms in interstate commerce to justify banning
mere possession without any link to interstate commerce. The Wilks
decision leaps to fill in the logical gap between regulating
activity in interstate commerce and banning a wholly local
23
intrastate action. Surely Congress ought to have decided that its
earlier attempts at regulation were ineffectual before taking this
intrusive step into the police power of the states. It is not for
the courts to do so. Compare Bass, supra, where the Court
expressed concern that Congress simply did not consider the
federalism implications of banning mere intrastate firearm
possession.
Although Wilks's point is debatable, I am persuaded that
prior federal firearms statutes and Congressional findings do not
speak to the subject matter of Section 922(o) or its relation to
interstate commerce. To paraphrase Lopez, by banning the wholly
intrastate possession of machine guns, Section 922(o) plows new
ground and breaks with the longstanding pattern of federal firearms
legislation. 115 S. Ct. at 1632, citing U.S. v. Lopez, 2 F.3d at
1366.
Eliminating the "channels of commerce" and "things in
commerce" bases of Commerce Clause jurisdiction espoused by the
majority, Section 922(o) may only be justified as a measure that
substantially affects interstate commerce. But the analogy between
Lopez and this case is compelling, so much so that the majority
here, like the court in Wilks, did not attempt to dispute it.
Like the provision found wanting by the Supreme Court,
Section 922(o) is also a "criminal statute that by its terms has
nothing to do with 'commerce' or any sort of economic enterprise."
Lopez, 115 S. Ct. at 1630-31. Further, Section 922(o) has no
jurisdictional element to ensure that the prohibited firearm
24
possession affects interstate commerce. Id. at 1631.16 Indeed,
Section 922(o) seems to suffer the same infirmities as the broad
reading of the former Section 1202 rejected by the Court in United
States v. Bass, 404 U.S. 336, 92 S. Ct. 515 (1971). See Lopez, 115
S. Ct. at 1631; Lopez, 2 F.3d at 1347 ("Were Section 1202 read to
punish mere possession without a commerce nexus, the Court argued,
it would intrude upon an area of traditional state authority and
would push Congress' commerce power to its limit, if not beyond.").
As in Lopez, the possession of a machine gun covered by
Section 922(o), without more, is no more an economic activity that
may substantially affect commerce than was the possession of a
firearm in a school zone prohibited by Section 922(q). 115 S. Ct.
at 1634. Section 922(o) would punish a local resident for the mere
possession of a machine gun acquired after 1986 "with no
requirement that his possession of the firearm have any concrete
tie to interstate commerce." Id. at 1634. Indeed, it would appear
that the arguments proffered in defense of Section 922(o) would
unalterably convert the commerce power into a reserved "general
police power" in direct contravention of the Court's dictates. Id.
at 1632-33; see also Id. at 1638. As Justice Kennedy's concurrence
in Lopez states: "Were the Federal Government to take over the
regulation of entire areas of traditional state concern, areas
having nothing to do with the regulation of commercial activities,
16
The government's brief relies on the legislative history of other
firearms statutes that was rejected as a guide to interpreting Section 922(q) in
Lopez. Lopez, 115 S. Ct. at 1632. Based on the Fifth Circuit's reading of the
legislative history behind firearms regulation and Section 922(o), in accordance
with the discussion above, I would reject the use of legislative history of prior
firearms legislation in this case.
25
the boundaries between the spheres of federal and state authority
would blur and political responsibility would become illusory." 115
S. Ct. at 1638.
Regardless of one's view of the wisdom or unwisdom of
banning the private, intrastate possession of machine guns, the
question before this court is whether Congress had the
constitutional authority to do so by virtue of its power to
regulate interstate and foreign commerce. Lopez reminds us
forcefully that Congress's enumerated power over commerce must have
some limits in order to maintain our federal system of government
and preserve the states' traditional exercise of the police power.
Section 922(o) is a purely criminal law, without any nexus to
commercial activity,17 and its enforcement would intrude the federal
police power into every village and remote enclave of this vast and
diverse nation. Even after Lopez, Congress need not do much to
satisfy the Commerce Clause. Here, however, it did practically
nothing. I respectfully dissent from the majority's decision
upholding the constitutionality of Section 922(o).
17
This case is obviously different from Wickard v. Filburn, 317 U.S. 111,
63 S. Ct. 82 (1942), in which the farmer's use of his privately grown wheat was found
to affect the market and "commerce" in that community.
26