United States v. Joseph Folen ( 1996 )

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No. 95-3496
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
Joseph William Folen, IV, *
*
Appellant. *
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Submitted: May 30, 1996
Filed: June 4, 1996
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Before McMILLIAN, WOLLMAN, and MURPHY, Circuit Judges.
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WOLLMAN, Circuit Judge.
Joseph William Folen, IV, appeals his conviction following his
conditional guilty plea to conspiring to violate 18 U.S.C. § 842(i), which
prohibits felons from possessing explosives that have travelled in
interstate commerce. We affirm.
Folen and a friend broke into a storage shed at a quarry in Pulaski
County, Arkansas, and stole explosives. After his arrest, Folen pleaded
guilty to an information charging him with conspiring "to possess
explosives which had been shipped or transported in interstate commerce."
Having reserved his right to challenge the constitutionality of section
842(i), Folen moved the court to dismiss the information, citing United
States v. Lopez, 115 S. Ct. 1624, 1634 (1995). The district court1
rejected Folen's challenge
1
The Honorable Henry Woods, United States District Judge for
the Eastern District of Arkansas.
and sentenced him to sixty months imprisonment and three years of
supervised release.
On appeal, Folen argues that Congress has exceeded its power under
the Commerce Clause by continuing to regulate indefinitely the possession
of explosives after they have crossed state lines; and that his conduct,
which occurred entirely within Pulaski County, constituted a local offense
and did not substantially affect interstate commerce.
The constitutionality of a statute is a legal question we review de
novo. United States v. Monteleone, 77 F.3d 1086, 1091 (8th Cir. 1996).
Section 842(i)(1) makes it unlawful for a felon to "possess any
explosive which has been shipped or transported in interstate . . .
commerce." We hold that section 842(i)(1) is constitutional because its
express jurisdictional element ensures that it regulates only the
possession of explosives that have travelled in interstate commerce. Cf.
United States v. Bates, 77 F.3d 1101, 1104 (8th Cir. 1996) (upholding 18
U.S.C. § 922(g)(1) because it contains express jurisdictional element
limiting regulation to firearm possessions with explicit nexus to
interstate commerce). The interstate nexus is not dependent upon a
defendant's personal interstate transportation of the explosives he
possessed. Cf. United States v. Shelton, 66 F.3d 991, 992 (8th Cir. 1995)
(per curiam) (for purposes of 18 U.S.C. § 922(g), interstate nexus is
sufficient where firearm has at some time been in interstate commerce),
cert. denied, 116 S. Ct. 1364 (1996).
Accordingly, the judgment of conviction is affirmed.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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