Opinion
No. 01 CR 1132
September 6, 2002
Robert Allen Korenkiewicz, Attorney at Law, Chicago, Ill., for defendant.
Abra C. Siegel, United States Attorneys Office, Chicago, Ill., for Plaintiff.
ORDER
Before the court is the motion of defendant John Tucker ("Tucker") to dismiss the indictment against him. Tucker is charged with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), and possessing a firearm with an obliterated serial number in violation of § 922(k). Tucker asserts that both §§ 922(g)(1) and (k) are beyond the constitutional power vested in Congress under the Commerce Clause because the conduct proscribed does not have a substantial effect on interstate commerce. In the alternative, Tucker argues that the indictment should be dismissed because the government will not be able present evidence to show that Tucker's conduct affected interstate commerce sufficient to withstand a Rule 29 motion to dismiss after the government has rested at trial. (Def.'s Mot. ¶ 5.) For the reasons herein, the court denies defendant's motion.
Rule 29 provides that a court may enter judgment of acquittal of offenses in the indictment "after evidence on either side is closed. . . ." Fed.R.Crim.P. 29(a). As the government points out, Tucker's argument challenges the sufficiency of the government's evidence, which is premature at this time.
ANALYSIS
Under 18 U.S.C. § 922(g)(1), it is unlawful for a felon to "ship or transport in interstate commerce, or possess in or affecting interstate commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce." Under § 922(k), it is unlawful for any person to
transport, ship, or receive, in interstate or foreign commerce, any firearm which has had the importer's or manufacturer's serial number removed, obliterated, or altered or to possess or receive any firearm which has had the importer's or manufacturer's serial number removed, obliterated, or altered and has, at any time, been shipped or transported in interstate or foreign commerce.
Tucker argues that §§ 922(g)(1) and (k) are unconstitutional based on recent Supreme Court rulings in United States v. Lopez, 514 U.S. 549 (1995), United States v. Morrison, 529 U.S. 598 (2000), and United States v. Jones, 529 U.S. 848 (2000). In Lopez, the Supreme Court ruled that a federal prohibition on possession of firearms in the vicinity of schools exceeded Congress' powers under the Commerce Clause. The court's ruling was based on its conclusions that the possession of guns in school zones is not an economic activity that might have a substantial effect on interstate commerce and that the statute contained "no requirement that [the defendant's] possession of the firearm have any concrete tie to interstate commerce." Lopez, 514 U.S. at 563-65, 567. In Morrison, the Court relied on Lopez to strike down a federal civil remedy for victims of gender-motivated violence. The Court concluded that gender motivated crime was not economic activity, and that these purely intrastate activities could only be regulated if economic in nature. Morrison, 529 U.S. at 610-12.
In Jones, the Court narrowed the reach of a federal arson statute by concluding that the residential building in question that was secured by a mortgage from an out-of-state lender, had a casualty insurance policy from an out-of-state insurer, and received natural gas from an out-of-state source did not qualify as "used" in interstate commerce or foreign commerce as the statute required. Jones, 529 U.S. at 855-56. The Court found that because the term "used" was expressly part of the statutory language, the statute's reach was limited to property "currently used in commerce or in activity affecting commerce," and would not reach a private dwelling not used for any commercial venture. Id. at 854, 859.
Tucker argues that §§ 922(g)(1) and (k) should be deemed unconstitutional after Lopez, Morrison, and Jones because they regulate non-economic activities, would authorize a "federal police power" in an area traditionally reserved to the states, and the jurisdictional element limiting §§ 922(g)(1) and (k) to guns that have moved in interstate commerce is insufficient. With respect to the jurisdictional element, Tucker argues that despite the language of §§ 922(g)(1) and (k) limiting their reach to guns that have at one time moved across state lines, a prior convicted felon's intrastate possession of such a firearm is not a commercial activity and does not substantially affect commerce, and could result in Congress passing a law outlawing the "theft of a Hershey Kiss from a corner variety store on the basis that the candy once traveled in interstate commerce. . . ." (Defs Mot. 11.)
Tucker's reliance on Lopez, Morrison, and Jones is unavailing. As the government points out, after these rulings the Seventh Circuit has consistently held that the interstate nexus requirement is satisfied under § 922(g)(1) if the firearm traveled in interstate commerce at any point prior to defendant's possession. See United States v. Mitchell, Nos. 01-4122 02-1190, 2002 WL 1790467, at *2 (7th Cir. Aug. 5, 2002) (rejecting the notion that § 922(g)(1) suffers from the same infirmities as the statutory section in Lopez because § 922(g)(1) "requires a showing that the possession be `in or affecting interstate commerce'"); United States v. Welesa, 223 F.3d 656, 659-60 (7th Cir. 2000), cert. denied, 531 U.S. 1174 (2001) (finding that nothing in Morrison or Jones "casts doubt on the validity of § 922(g), which is a law that requires a link to interstate commerce"); United States v. Williams, 128 F.3d 1128, 1133 (7th Cir. 1997) ("Congress has authority under the Commerce Clause to pass § 922(g)(1) because subsection (g) contains its own provision that the possession must be `in or affecting interstate commerce.'"); United States v. Bell, 70 F.3d 495, 498 (7th Cir. 1995) (expressly rejecting a Commerce Clause challenge to § 922(g) because it had what Lopez did not: "an explicit requirement that a nexus to interstate commerce be established.")
Furthermore, the Supreme Court's interpretation of 18 U.S.C. App. § 1202(a), the precursor statute to 18 U.S.C. § 922(g), in Scarborough v. United States, 431 U.S. 563, 568-78 (1977), also held that the statute applied to a felon who possessed a firearm that had previously traveled in interstate commerce and was within Congress' Commerce Clause powers. The Court has also found that under the statutory section prohibiting persons from receiving a firearm affecting interstate commerce, the commerce element was satisfied if the "firearm received has previously traveled in interstate commerce." United States v. Bass, 404 U.S. 336, 350 (1971). For these reasons, Tucker's claim that § 922(g)(1) is unconstitutional is rejected.
Under 18 U.S.C. App. § 1202(a), a felon who "receives, possesses, or transports in commerce or affecting commerce" any firearm is guilty of an offense.
The Seventh Circuit has relied on these cases in its post- Lopez analysis of the felon-in-possession statutes. See Mitchell, 2002 WL 1790467, at *2 (holding that the "Supreme Court resolved the issue of the constitutionality of the felon-in-possession statute" in United States v. Bass, 404 U.S. 336 (1971)).
In regard to § 922(k), the section's plain language makes clear that the commerce element can be met by an individual's possession of a firearm that "has, at any time, been shipped or transported in interstate commerce." (emphasis added). Like § 922(g)(1), this statute has "an explicit requirement that a nexus to interstate commerce be established." Bell, 70 F.3d at 498. Thus, the interstate commerce requirements would be met so long as the government shows that the firearm had at some point been shipped or transported in interstate commerce. Therefore, Tucker's claim that § 922(k) is unconstitutional is also denied.
Accordingly, the court concludes that §§ 922(g)(1) and (k) are constitutional, and Tucker's motion to dismiss his indictment is denied.
Defendant also argues in his motion to dismiss the indictment that he should be entitled to a three point reduction in his sentence if he is found guilty because he accepted responsibility for the offense under U.S.S.G. § 3E1.1 (Def. Mot. ¶ 7.) The court declines to address this issue at this time. If the defendant is convicted, the issue will be justiciable.