UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-50318
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
LORAN BRUCE PIERSON,
Defendant-Appellant.
Appeals from the United States District Court
For the Western District of Texas
April 17, 1998
Before DAVIS, WIENER, and PARKER, Circuit Judges.
ROBERT M. PARKER, Circuit Judge:
The defendant, Loran Bruce Pierson, appeals from a conviction
of mailing a destructive device with intent to kill or injure in
violation of 18 U.S.C. § 1716; use of a destructive device during
and in relation to a crime of violence in violation of 18 U.S.C. §
924(c)(1); and possession of a firearm, which had moved in
interstate commerce, by a person subject to a protective order
prohibiting family violence in violation of 18 U.S.C. § 922(g)(8).
The defendant challenges his conviction claiming that the district
court erred, inter alia, by holding 18 U.S.C. § 922(g)(8)
constitutional. After considering the issues raised by the
defendant on appeal, we affirm.
I.
Prior to the dissolution of their marriage, the defendant
committed family violence against his wife, Rebecca Roland, and her
daughter. After Pierson physically assaulted Roland’s daughter
with his crutch, Roland informed Pierson that she was leaving him.
The defendant replied that he would kill Roland if she left him.
Thereafter, Roland and her daughter moved into a trailer located
200 feet from the defendant’s home. While Roland and her daughter
were living in the trailer, Pierson continued to verbally abuse
Roland and would shoot a firearm in the direction of the trailer in
order to get Roland’s attention.
On September 5, 1995, Roland obtained a protective order
because Pierson was stalking her. The protective order provided
that Pierson had committed or threatened family violence and that
family violence was likely to occur in the foreseeable future. The
protective order directed Pierson not to commit family violence
against Roland and her daughter, not to communicate with Roland and
her daughter in an abusive or threatening manner, and to stay at
least 200 feet away from Roland and her daughter.
On September 21, 1995, the United States Postal Service
delivered a package to the Leon County Office of Community
Supervision and Correction, located in Centerville, Texas, bearing
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the notation, “Attention Rebbecca [sic].”1 Roland worked at the
Leon County office as a clerical employee whose duties included
opening and sorting the office mail. The package had been mailed
from Dallas on September 20, 1995. After opening the package,
Roland could not remove the contents of the package, so she asked
Community Supervision Officer James Robeson to assist her. Robeson
shook the parcel until several pieces of cardboard and a metal box
fell out of the package.2 Upon opening the metal box, Robeson
discovered two metal pipes, wires, and batteries. Robeson then
yelled “bomb, bomb” and ordered everyone to evacuate the building.
An ordinance team from the United States Army responded to the
attempted bombing. After determining that the metal box contained
a potentially live bomb, the team rendered the device safe by
placing the box in a protective bunker and firing a .50 caliber
round through each of the pipes, causing the pipes to detonate.
After the ordinance team detonated the device, agents from the ATF
collected the debris, including fragments of the pipes, switches,
batteries, wires, tape and remnants of epoxy. An explosives expert
with the U.S. Department of Treasury determined that the debris
came from an “explosive device” or “destructive device.”
1
At trial, Roland testified that Pierson often misspelled her
name “Rebbecca.”
2
A fingerprint expert with the U.S. Postal Service, Scott
Peters, examined the cardboard inserts packaged with the bomb and
found Roland’s palm and finger prints. Robeson and Roland
testified that Roland did not touch the cardboard inserts when they
were removing the metal box from the parcel. Roland also testified
that the cardboard inserts looked like a cardboard box that had
been in her home.
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After law enforcement officers learned of the protective order
obtained by Roland, the investigation focused on Pierson as a
possible suspect in the attempted bombing. Investigators secured
a search warrant for Pierson’s home. As agents approached the home
to execute the warrant, Pierson asked if anything had happened to
his wife. Agents seized a Sturm Ruger rifle and Marlin shotgun
from Pierson’s home. In later searches, the agents seized the
contents of a vacuum cleaner, a laptop computer, a Packard Bell
computer and printer, several rolls of tape, and hair samples from
Pierson. Forensic experts from the U.S. Postal Service determined
that the evidence collected from the bomb site was consistent with
certain evidence collected from Pierson’s residence.
In a three count indictment, Pierson was charged with mailing
a destructive device with intent to kill or injure in violation of
18 U.S.C. § 1716 (count one); use of a destructive device during
and in relation to a crime of violence in violation of 18 U.S.C. §
924(c)(count two); and possession of a firearm, which had moved in
or affected interstate commerce, by a person subject to a
protective order prohibiting family violence in violation of 18
U.S.C. § 922(g)(8)(count three). Following a jury trial, Pierson
was convicted of all three counts. The district court sentenced
the defendant to ninety-seven months for count one, thirty years
for count two, and ninety-seven months for count three. The terms
of imprisonment for counts one and three are to be served
concurrently with each other and consecutively with count two.
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II.
The defendant contends that 18 U.S.C. § 922(g)(8) is an
unconstitutional exercise of congressional power that violates the
principles enunciated in United States v. Lopez, __ U.S.__, 115
S.Ct. 1624 (1995). Specifically, Pierson argues that possession of
a firearm while subject to a protective order prohibiting domestic
violence does not substantially affect interstate commerce. The
district court, however, upheld the constitutionality of the
statute by denying the defendant’s Motion to Dismiss the
Indictment. In reviewing constitutional challenges to federal
statutes, we apply a de novo standard of review. See United States
v. Bailey, 115 F.3d 1222, 1225 (5th Cir. 1997).
In United States v. Lopez, the Court held that a related
statutory prohibition outlawing the possession of a gun in a school
zone, 18 U.S.C. § 922(q), was unconstitutional under the Commerce
clause. See United States v. Lopez, __ U.S. __, 115 S.Ct. 1624,
1629-34 (1995). The Court identified the following three broad
areas of activity over which Congress may constitutionally exercise
its commerce power: (1) Congress may regulate the use of the
channels of interstate commerce; (2) Congress may regulate and
protect the instrumentalities of, or persons or things in
interstate commerce; and (3) Congress may regulate activities
substantially affecting interstate commerce. Id. at 1629. In
holding § 922(q) unconstitutional, the Court determined that the
intrastate possession of a firearm, without more, could not be
regulated as a channel or instrumentality of interstate commerce,
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or a person or thing in interstate commerce. See Lopez, 115 U.S.
at 1630. Thus, the intrastate possession of a firearm could only
be prohibited under the Commerce Clause if such possession had a
substantial effect on interstate commerce. Id. The Court noted
that § 922(q) was a criminal statute that had nothing to do with
commerce or any sort of commercial enterprise and was “not an
essential part of a larger regulation of economic activity, in
which the regulatory scheme could be undercut unless the intrastate
activity were regulated.” Id. at 1630-31. Therefore, the Court
held that the intrastate possession of a firearm in a school zone
did not substantially affect interstate commerce, and as such,
could not be prohibited under the commerce power. Central to the
Lopez Court’s holding was the fact that § 922(q) contained “no
jurisdictional element which would ensure, through a case-by-case
inquiry, that the firearm possession in question affects interstate
commerce.” See Lopez, 115 S.Ct. at 1631. See also United States
v. Rawls, 85 F.3d 240, 242 (5th Cir. 1996)(upholding the
constitutionality of § 922(g)(1)).
Unlike § 922(q), § 922(g)(8) contains a jurisdictional
element. Section 922(g)(8) forbids any person subject to a
protective order prohibiting family violence “to ship or transport
in interstate or foreign commerce, or possess in or affecting
commerce, any firearm or ammunition; or to receive any firearm or
ammunition which has been shipped or transported in interstate or
foreign commerce.” 18 U.S.C. § 922(g)(8). By expressly requiring
a nexus between the illegal firearm and interstate commerce,
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Congress has exercised its delegated power under the Commerce
Clause to reach “a discrete set of firearm possessions that
additionally have an explicit connection with or effect on
interstate commerce.” Lopez, 115 S.Ct. at 1631. We have upheld
the constitutionality of a similar statutory provision forbidding
the possession of a firearm by a convicted felon, 18 U.S.C. § 922
(g)(1), which includes the exact same jurisdictional element. See
United States v. Rawls, 85 F.3d 240, 242 (5th Cir. 1996); United
States v. Wallace, 889 F.2d 580, 583 (5th Cir. 1989). As we
recognized in Wallace, “[T]he words ‘affecting commerce’ are
jurisdictional words of art, typically signaling a congressional
intent to exercise its Commerce Clause power broadly, perhaps as
far as the Constitution permits.” Our decisions in Rawls and
Wallace necessitate the same result for § 922(g)(8). As such, we
hold that “neither the holding in Lopez nor the reasons given
therefor constitutionally invalidate” § 922(g)(8). See Rawls, 85
F.3d at 242.
Additionally, Pierson contends that § 922(g)(8) is
unconstitutional as applied to him. Specifically, Pierson asserts
that the firearms which he possessed did not affect and were not
possessed in commerce. As this court has previously held, the “in
or affecting” commerce element can be satisfied if the illegally
possessed firearm had previously traveled in interstate commerce.
See Rawls, 85 F.3d at 242(citing Scarborough v. United States, 431
U.S. 563, 575 (1977)). The Sturm Ruger rifle was manufactured in
Connecticut and the Marlin shotgun was manufactured in New
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Hampshire. Thus, the firearms had to travel in interstate commerce
in order for Pierson to possess them in Texas. As we have
previously noted, evidence that a gun was manufactured in one state
and possessed in another state is sufficient to establish a past
connection between the firearm and interstate commerce. See Rawls,
85 F.3d at 243; Wallace, 889 F.2d at 584. See also Scarborough, 431
U.S. at 575 (concluding that Congress did not intend to require any
more than the minimal nexus that at some time the firearm had been
in interstate commerce). Consequently, we hold that § 922(g)(8) is
not unconstitutional as applied to Pierson.
III.
Additionally, the defendant challenges his conviction by
asserting that the government failed to produce evidence sufficient
to support the conviction, that he received the ineffective
assistance of counsel, and that the court erred by failing to grant
the defendant’s Motion for Severance of count three from counts one
and two. After considering the legal arguments raised by the
parties in their briefs to this court, we are satisfied that no
reversible error occurred. For the foregoing reasons, the decision
of the district court is
AFFIRMED.
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